ARBITRATION AWARD. Panellist: Bella Goldman Case No.: PSCB293-14/15 Date of Award: 9 December In the ARBITRATION between:

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1 ARBITRATION AWARD Panellist: Bella Goldman Case No.: PSCB293-14/15 Date of Award: 9 December 2015 In the ARBITRATION between: Eric Nceto Matoti (Union / Applicant) And Department of Correctional Services (Respondent) Union / Applicant s representative: Union/Applicant s address: Telephone: Telefax: Xolani Matshoba Respondent s representative: Respondent s address: Telephone: Telefax: Kaiser Lupondo, Busile Nxele and Buhle Mkiva, Page 1

2 DETAILS OF THE HEARING AND REPRESENTATION 1. The matter was scheduled for an arbitration hearing at the offices of the respondent in Goodwood on 22 January 2015; the parties gave opening statements and the applicant gave evidence in chief thereafter the matter was postponed as result of the non availability of the respondent s witnesses. It was then set down for 7 July 2015 when it was again postponed due to the non availability of all parties. 2. It was set down for 10 September 2015; the respondent s representative on that day requested a postponement on the basis that the respondent s one and only witness Mrs Sebotsa the Area Commissioner was unable to attend the arbitration hearing as a result of having to attend interviews at the Regional Headquarters. The representative on that day stated that he was only notified of the requirement for postponement on the day of the hearing. 3. I granted postponement but stated on that day that the interviews must have been arranged some time in advance as was the arbitration and that I would grant the postponement this time but that this was the 2 nd time the respondent had asked for a postponement based on a similar reason. The next date for arbitration was decided by agreement and was 15 November On 15 November 2015 again the respondent s representative who was now a third representative again requested postponement on behalf of the respondent based on the non availability of the respondent s one and only witness and the non availability of the respondent s representative. In support of the application for postponement the representative submitted an forwarded to the witness, Ms Sebotsa amongst others informing them that there would be a Regional Mid Year Review being held from 9-11 November The representative further referred me to an which he could not explain which was undated which appeared to be a diary entry indicating confirmation of the meeting. 5. Considering that the representative should have secured his witness timeously and the witness was aware of this meeting as from 24 February 2015 and there was no explanation as to why the respondent did not communicate that it required a postponement to the PSCB earlier I informed the representative that I could see no reason to grant postponement. Further this was now the third time that the respondent did not have there witness present at the arbitration hearing and the applicant in terms of justice and fairness has the right to speedy resolution to his dispute I decided to proceed in the absence of the respondent s witness. 6. The applicant was throughout the process represented by Xolani Matshoba, POPCRU Shop Steward / Fellow Employee. The respondent was represented by Kaizer Lupondo, Employee Relations Manager, Busile Nxele, Employee Relations Manager and Buhle Mkiva, Manager, Human Resources Manager on Page 2 of 6

3 22 January 2015, 10 September and 15 November 2015 respectively. The proceedings were digitally recorded. I gave the parties an opportunity to present closing argument in support of their respective cases; however neither did. ISSUE TO BE DETERMINED 7. The dispute was referred as one relation to interpretation and application of a collection agreement in terms of the Labour Relations Act 1995 as amended (LRA). The collective agreement in question is Resolution 7 of 2000, specifically clause namely that relation to Temporary Incapacity Leave (TIL) I have to determine whether the respondent breached the collective agreement or did not apply it. If so the appropriate remedy. BACKGROUND TO THE ISSUE 8. The following are common cause events unless otherwise indicated. The respondent is employed by the respondent as Correctional Officer II. The incident from which the dispute emanated took place on 24 May 2012 when he was attacked by prisoners as he was confiscating a cell phone from one of them and thereafter he was attacked by several other offenders. 9. As a result of this incident the applicant was injured on duty the applicant applied for injury on duty benefits until 14 October Thereafter he applied for TIL, his applications for all periods were turned down and this is the subject matter of this application. SURVEY OF THE EVIDENCE AND ARGUMENT 10. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute. Documentary Evidence 11. The applicant submitted bundles of documents in evidence. It should be noted that the applicant s bundle was adhoc in that it did not contain the temporarily incapacity application of all the periods in question and the answers thereof from the respondent; it should be noted that much of the documents related to the injury on duty process and the applications for leave. Further the documents were put together in a haphazard manner. Page 3 of 6

4 Employee s Evidence The applicant Eric Nceto Matoti gave evidence under oath and called one witness, Dr Anthony Lekas Psychiatrist. The following is a summary of his testimony: Eric Nceto Matoti 12. He stated that his application for TIL stemmed from an incident which took place on 24 May 2012 when he was attacked by prisoners after confiscating a cell phone from a prisoner. Following the incident he applied for compensation from the Workman s Compensation Fund and injury on duty benefit and thereafter for TIL; the period in question were: 14 October 2012 to 31 October December 2012 to 27 December January to 1 February April to 29 April May 2013 to 30 June May 2013 to 30 June July 2013 to 11 July July July 2013 to 25 July July 2013 to 31 July August 2013 to 5 August Each time his application was turned down as per the documentation on behalf on the Area Commissioner for the following reasons: On the basis of previous incapacity leave applications for the same conditions; The applicant s unsatisfactory leave profile; The fact that he was not hospitalised to optimise during the period of absence to optimise his treatment or that he suffered any complications to treatment during the period of absence; He was advised to continue to consult with his psychiatrist of clinical psychologist. 14. The applicant denied that he had ever suffered from a similar condition. Dr Anthony Lekas 15. The witness, the applicant s psychiatrist, stated that he has been treating the applicant since the incident which took place on 24 May This incident has resulted in the applicant suffering from severe anxiety, depression and post traumatic stress disorder. The witness has been treating the applicant with Page 4 of 6

5 medication. He has provided him with medical certificates booking him off work for the period in question and the period prior to that when he claimed he was injured on duty (IOD). The applicant showed an improvement until 17 September 2012 when he witnessed an accident which led to the death of a member of his family. The fact that deductions were made from the applicant s salary also aggravated his condition. 16. The applicant was not hospitalised as the Workman s Compensation Fund in terms of the applicant s IOD claim would not pay for his hospitalisation and his TIL was not approved. The witness stated that in his professional opinion the respondent should have approved the applicant s claim for TIL. ANALYSIS OF THE EVIDENCE AND ARGUMENT 17. The dispute was referred as an interpretation and application of a collective agreement dispute in terms of section 24 of the LRA, namely Resolution 7 of 2000 specifically clause which relates to TIL. 18. The applicant in this case did not cite any particular clause of the agreement as being breached and from the evidence before me, both the oral and documentary it appears that the elements of clause were complied with by the responded, namely; the respondent did investigate the extent of the inability to perform normal official duties, the degree thereof and the investigation appeared to be in accordance with item 10 (1) of Schedule 8 of the LRA. 19. In essence what the applicant is contesting is the fairness of the respondent s decision not to grant him TIL for the periods in question. Not much turns on this but the applicant in his evidence claimed that the Area Commissioner made the decision not to grant him TIL but from perusing the documentation it is apparent that it was on the advice of the Health Risk Manager, an outside provider, by the name of PHS who employ medical practitioners and their assessments were communicated to the applicant on behalf of the Area Commissioner. 20. Thus it is not the interpretation and application of the collective agreement that is in question here but the fairness of the decision of the respondent and as such the issue in dispute does not relate to a breach or the manner in which the collective agreement was applied and hence Council does not have the jurisdiction to arbitrate the dispute. 21. In this regard I must be guided by the decision of Minister of Safety & Security v SSSBC & Others (2010) 6BLLR 705 (LAC) where the facts related to a Collective Agreement, albeit not the same one. In that case as argued by respondent the Labour Appeal Court found that what was actually in dispute was Page 5 of 6

6 the fairness of the decision and not the application and interpretation of the collective agreement and that as such the Council in that case; the Safety and Security Sector and Bargaining Council did not have the jurisdiction to arbitrate the dispute. 22. As this matter also related to the fairness of a decision made in terms of a collective agreement I find that Council does not have the jurisdiction to arbitrate the dispute. 23. Should the applicant wish to pursue his dispute he may possible refer an unfair labour practice: benefits dispute to the GPSSBC and apply for condonation of the late referral of the dispute. AWARD 24. I find that the Council does not have the jurisdiction to arbitrate this dispute. Panellist: Bella Goldman Page 6 of 6