IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD IN DURBAN, KWAZULU-NATAL. Department of HUMAN SETTLEMENT - KwaZulu-Natal ARBITRATION AWARD

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1 IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD IN DURBAN, KWAZULU-NATAL CASE NO: PSCB /17 PSA obo A.D. Abrahams APPLICANT and Department of HUMAN SETTLEMENT - KwaZulu-Natal RESPONDENT ARBITRATION AWARD DATE OF AWARD : 29 th September 2016 ARBITRATOR : Saber Ahmed Jazbhay 1

2 DETAILS OF HEARING AND REPRESENTATION 1. The dispute relating to this matter was set down for arbitration on the 20 th of September 2016 in the boardroom of the respondent situated on the 6 th Floor at 2 Samora Machel Street in Durban. The Applicant (hereinafter referred to as the applicant ) was represented by Mr V Hariparsad. The respondent, Department of Human Settlement -KwaZulu-Natal (hereinafter referred to as the respondent ) was represented by Mr Sibusiso Cele. Both the applicants together with his representative and the respondent s representative were present on the 20 th September On that day the matter was argued by the applicant and respondent respectively after exchanging their respective bundles of documents which I have indexed as A and B respectively. At the close of both their cases, they requested time to submit closing arguments which, in view of the plethora of documents and the evidence that was led, I acceded to. 3. I ruled that both the Applicant and the Respondent were to submit their closing arguments in the Word Format by no later than the 29 th September ISSUES TO BE DECIDED It is trite that each matter has to be decided on its own merits and that there s no one size fits all outcome favourable to either party. The facts in this case are in their own sense different as will appear. The issue to be determined is whether the respondent complied with the provisions of PSCB Resolution 7 of 2000 in failing to grant the applicant s application for temporary incapacity leave (TIL) and dependent thereon, appropriate relief. 4. ISSUES a. Whether, given the facts and circumstances of this case, the Respondent correctly interpreted the Resolution in relation to the Applicant s application for short and long term temporary incapacity leave? It is axiomatic that there are positive rights and obligations that both parties are obliged to adhere to. b. Whether the Respondent complied with the provisions of the Resolution and or correctly applied the Resolution in relation to the Applicant s applications for short and long term temporary incapacity leave. 2

3 c. The particular provision in dispute relates to temporary incapacity leave as well as permanent incapacity leave 5. BACKGROUND TO THIS MATTER Much of the issues contained in this background are common cause and save were indicated are not in dispute. I have crystallised both the applicant s as well as the respondent s arguments from their closing statements. (a) The applicant referred a dispute to the Council relating to interpretation and application of collective agreement PSCBC 7 of The dispute was in respect of his 5 application 1 for Temporary Incapacity Leave (TIL) as follows: 1. 17/08/2010 to 18/08/ /08/2010 to 29/09/ /09/2010 to 27/10/ /10/2010 to 03/12/ /12/2010 to 11/01/2011 (b) The respondent declined all five applications for Temporary Incapacity Leave of the applicant. The respondent advised the applicant of its decision on 30 March (c) The applicant submitted further particulars in respect of his applications i.e. Specialist Reports etc. (d) The respondent forwarded the further particulars to Thandile Health Risk Management for review of the applicants applications, on the 5 th July (e) The respondent advised the applicant of its decision of the review on 16 th August 2011, which approved 24 days and its intention in respect of the disapproved 94 days 3. (f) In November 2011the respondent proceeded with deductions of R from the applicant s salary in terms of its letter dated 16 th August (g) I reiterate that it is common cause that the primary issue in dispute is the interpretation/application of PSCBC Resolution 7 of The applicable provision (in dispute) relates to both short term and long term temporary incapacity leave. 1 the respondent argues 6 applications 2 see Respondents bundle page see Applicants bundle page 3 3

4 (h) (i) (j) (k) (l) (m) It is also common cause that the Applicant referred a dispute to the above Council relating to the interpretation and application (in terms of Clause 24(2) and 24(5) of the Labour Relations Act, 1995, as amended) of Resolution 7 of 2000 (the Resolution ) to his applications for short term temporary incapacity leave for the following periods as a result of him becoming incapacitated due to Prostatic Hyperplasia and Acute Chronic Prostatis. The period for which temporary incapacity leave was sought is recorded and agreed between the parties. It is undisputed that the applicant exhausted his normal sick leave cycle. In summary, the applicant s case is that he was invited to and that on the advice of his supervisor, based in Richards Bay, he duly personally submitted forms to the respondent. It is common cause that the respondent had rejected all his applications but that it had made certain concessions and adjustments, for example it granted the applicant a further 24 days 4. The respondent s case is that whilst that is undisputed, it had followed procedure and had fully complied with its obligations and that it acted within the limits of its obligations as encapsulated in the Resolution 7 of It persistently argued that it had adhered to the time frame as articulated in clause 7.5.3(b) of the resolution. The respondent, also argued that despite the fact that the applicant failed to comply with the requirements as stated in clause of the Policy and Procedure on Incapacity Leave and Ill Health (PILIR), it nevertheless condoned the late submissions. It apposite that it had the right to reject the late applications and submissions and so nothing turns on the fact it chose on its own free will to condone this. SURVEY OF EVIDENCE, SUBMISSIONS AND ARGUMENTS 1. It is imperative that I consider if the matter is properly before me and whether the PSCBC has jurisdiction to hear this matter. Legal Principles considered and applied 4 See para (e) 4

5 2. Collective agreements differ markedly from conventional contracts 5 and are binding on non-signatories and may vary exiting contracts of the latter by virtue of the Labour Relations Act (the Act) and this also should also be taken into account. For example: a. a collective agreement in terms of the Act is not an ordinary contract and the context within which a collective agreement operates under the Act is vastly different from that of an ordinary contract 6 b. A collective agreement is unlike any other ordinary contract and that the primary objects of the Act are better served by an approach that is practical to the interpretation and application of such agreements. This, it was stated, was better suited to promote the effective, fair and speedy resolution of labour disputes. 7 c. In terms of section 23 and 31 of the Act, not only the actual parties to the collective agreement, but each member of the trade union in question/employer organisations are also bound, and in this case the parties to the PSCB 8, that is to say, the State/Head of Department of Human Settlement as employer and Union parties It is preferable, for the sake of completeness, to refer to the purpose for which the particular collective agreement has been crafted. It is the guiding factor in determining the meaning thereof and accordingly, a meaning which facilitates the purpose of a collective agreement, which, in turn is informed by the purposes of the Act, will be adopted above another that does not See also Fakude &Others v Kwikhot(Pty)Ltd (2013) 34 ILJ 2024 (LC) 6 Ethekwini Municipality (Health Department) v Imatu obo Foster and Others (2012) 22 ILJ 152 (LAC) 7 Per Mlambo JP citing with approval the comments of Froneman DJP, as he then was, in SAMWU v SALGA and Others Case Number DA 06/09 dated November See in SAMWU v SALGA and Others Case Number DA 06/09 dated November Section 23(3) of the LRA provides that: Where applicable, a collective agreement varies any contract of employment between and employee and employer who are both bound by a collective agreement. Section 31 of the LRA provides that a collective agreement concluded in a bargaining council, subject to section32, binds (a) the parties to the bargaining council who are also parties to the collective agreement;(b) each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions thereof apply to the relationship between such a party and the members of such other party; and (c) the members of a registered trade union that is a party to the collective agreement and the employers who are members of a registered employers organisation that is such a party The Constitutional Court has directed us to adopt a purposive approach which normally narrows down the scope of meaning or a right to include activity that comes within that purpose and to exclude that activity that does not. Section 3 of the LRA echoes that by providing that any person applying the Act must interpret its provisions to give effect to its primary object in compliance with the Constitution. 5

6 4. Our courts have consistently held that the ordinary and popular meaning of the words employed 11 is to be used and that we must consider the document as a whole, when interpreting its provision and where different parts appear contradictory, to reconcile these in line with the purpose, alternatively the intention of the framers of the document (italicised for emphasis) In the context of interpretation or application of a collective agreement, such as the one, namely Resolution 7 of 2000 and the dispute with which I am seized with, interpretation refers to the situation where the parties differ over the meaning of a provision thereof. 13 Application includes whether an agreement applies to the facts in question and the manner in which the agreement is applied which includes non compliance The provisions of Item 10(1) of Schedule 8 to the Labour Relations Act, 1995, are incorporated by reference. The Employer is required within a period of thirty days to assess the degree of incapacity, the extent of the incapacity or the injury. In the circumstances where the employee is likely to be absent for a time that is unreasonably long, the employee must investigate all possible alternatives short of dismissal. 7. The purpose of Resolution 7 of 2000 and the Policy and Procedure on Incapacity Leave and for Ill Health Retirement (PILIR) is to ensure that an employee s incapacity problems are properly managed, addressed and resolved within the relevant time frames, which if followed would result in TIL being confirmed or declined (but within the time frame provided).alternatively, it would result in accommodating the employee. Where incapacity leave is declined, the employee should be required to return to work, or leave without pay instituted 15 or misconduct proceedings instituted The discretion to grant or refuse TIL, must be exercised properly, rationally and fairly 17, and the failure, for example to take into account relevant information, or to follow laid down procedures, or the obligation to act within the framework and purpose of the collective agreement, will invite judicial scrutiny for want of compliance with the collective agreement. 11 See Food and Allied Workers Union v Commission for Conciliation, Mediation and Arbitration and Others, (2007) 28 ILJ 382 (LC) and cases cited thereon. 12 See Cusa v Tao Ying Metal Industries and Others, (2008) 29 ILJ 246 (CC). 13 See SAMWU v SALGBC[2012] BLLR 334 (LAC) { } 14 Referred to as the wider approach. See Imatu v SALGBC [2012] BLLR 334 (LAC). { }. 15 In terms of para 26 of the Determination and Directive on Leave of Absence in the Public Service, made by the Minister for DPSA, the possibility exists that an employee may be granted up to 184 calendar days of unpaid leave. 16 Para 7.1.5; 7.1.6;7.1.7;7.1.8 of Pilir 17 See PSA and HC Gouvea v PSCBC and others (2013) ZALCD 3 ( ) at [20]. 6

7 9. Moreover, the Labour Court held that a decision of an employer, arising out of its discretion in terms of a collective agreement, may not apply retrospectively and to do so is an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee An arbitrator is empowered to determine a dispute concerning the interpretation or application of a collective agreement by way of an appropriate award that gives effect to such a collective agreement 19. An arbitration hearing, such as the present one, in terms of the LRA is an opportunity for aggrieved employee, such as the applicant in this matter, to challenge the decision of the employer. In the event an arbitrator makes a determination contrary to that of the employer, this is not a review of that decision but a determination based on the facts presented by the parties, by virtue of the provisions of the LRA Section 138(9) of the LRA provides that The Commissioner may make an appropriate arbitration award in terms of this Act, including but not limited to, an award (a) that gives effect to a collective agreement; (b) that gives effect to the provisions and primary objects of the Act; (c) that includes or is in the form of s declaratory order. Awards may wary, depending on the matter at hand. 12. In the circumstances, I am satisfied that considering recent and binding case law and the nature of the employee, as the applicant s dispute that:- a. The main issue concerns the interpretation or application of a collective agreement, namely PSCB Resolution 7 of b. The PSCBC is the appropriate forum for the applicant to challenge the respondent s decision in refusing to grant of TIL, in so far as the applicant alleges failure by the respondent to comply with the collective agreement In the circumstances, I am satisfied that considering recent and binding case law and the nature of the employee s, (as the applicant) dispute that a. The main issue concerns the interpretation or application of a collective agreement, namely PSCB Resolution 7 of b. The PSCBC is the appropriate forum for the applicant to challenge the respondent s decision in refusing to grant of TIL, in so far as the applicant alleges failure by the respondent to comply with the collective agreement Public Service Association of South Africa and HC Gouvea v PSCBC and Others [2013] ZALCD 3 (26 February 2013) at [20]. 19 Section 138(1) and section 138(9) read with section 1 and 3 of the LRA 20 See Ministry of Safety and Security v SSSBC and Others, (2010) 31 ILJ 2680 (LC) 21 PSA obo Liebenberg v Department of Defence and Others, (2013) 34 ILJ 1759 (LC) 22 PSA obo Liebenberg v Department of Defence and Others, (2013) 34 ILJ 1759 (LC) 7

8 14. Apart from the foregoing, I only set out here under the evidence, submissions and arguments of the parties that which is necessary to enable me to determine this dispute. 15. Applicant s case is as couched below To avoid unnecessary prolix, I shall avoid repeating what has been stated in the background to this dispute and in so far as it is relevant towards the applicant s case what was stated therein will be taken as applying here as well. It is well worth remembering that none of the applicant s testimony was seriously challenged by the respondent during cross-examination. a. The applicant testified that he is employed by the respondent Department of Human Settlements KZN as a Senior Administration Officer and was based in Ulundi. He took retirement in ay b. That in July 2010 he took ill and underwent surgery in August 2010, for complications relating to his prostate glands. c. The recuperation after surgery was long and indisposed the applicant, he could not leave home for long periods due to uncontrollable bladder, and he was so debilitated that he could not use public transport to get around. d. As he lived in Durban he was in constant contact with his supervisor Mr L. Joseph, who was based in Richards Bay and who telephonically advised him regarding application for leave. e. In February 2011, Mr Joseph informed the applicant to approach HR at Samora House and complete Temporary Incapacity Leave applications as his normal sick leave credits had been exhausted. f. The applicant testified that he duly complied, and that HR provided him with TIL Application forms which he completed for period 17/8/2010 to 11/01/2011 and handed same to HR on the 10/02/2011 and 14/02/2011. g. On 30 th March 2011 the applicant was informed that his TIL applications were not approved. h. The applicant submitted further particulars and detailed reports, as required from his doctor and requested that his applications be reviewed. 16. The respondent informed the applicant of its decision on 16 th August 2011, where 24 days was approved and that it converted 22 days to vacation leave and leave without pay 72 days. 8

9 17. The testified further that the respondent arbitrarily proceeded deductions from his salary without the applicant s consent and this has caused his severe prejudice and hardship. 18. He lodged a grievance in accordance with the grievance procedure and was under the impression that whilst this was being prosecuted, the respondent will not deduct from his salary. 19. The applicant made representations regarding these deductions from his salary and the respondent reduced the amount deducted from R to R per month. 20. The applicant retired from service as at end of May 2016 and the balance owing to the respondent was deducted from the applicant s benefits. PSCBC RESOLUTION 7 OF 2000 AS AMPLIFIED WITH THE POLICY AND PROCEDURE ON INCAPACITY LEAVE AND FOR ILL HEALTH RETIREMENT (PILIR) AND DETERMINATION ON LEAVE IN THE PUBLIC SERVICE: a. Resolution: i. Clause (Disability Management Leave) of PSCBC Resolution 7 of 2000 provides for the general guidelines and process to be considered and applied by the Respondent when determining an application for temporary disability leave. ii. The provision is applicable to an employee that has exhausted his/her normal sick leave credits in a cycle and who according to the relevant practitioner, requires to be absent from work due to disability which is not permanent. iii. Such employee may be granted sick leave on full pay notwithstanding the exhaustion of his/her sick leave credits for that cycle provided that: 1. His(or her) supervisor is informed of the employee s illness; and the relevant registered medical practitioner has duly certified such condition in advance as temporary disability, except where conditions do not allow (Clause 7.5.1(a)(i) and (ii)of the Resolution). b. The employer is obligated (sic) during the thirty working days from notice of the disability to investigate the extent of the employee s inability to perform his/her 9

10 normal duties, the degree of inability and the cause of such inability. The employer is further obligated to perform such investigation in accordance with item 10(1) of Schedule 8 of the LRA (Clause 7.5.1(b) of the Resolution). c. Part 2, Clause 1.2 in the Determination on Leave of Absence in the Public Service (the Determination) states that the Determination gives effect to clause 7 of the Resolution, as amended. Clause 13.1 under the heading Temporary Incapacity Leave, states that incapacity leave is additional leave granted conditionally at the employer s discretion, read with the policy and Procedure on Incapacity Leave for Ill-health Retirement determined by the Minister for Public Service and Administration in terms of sec. 3(3)(c) of the Public Service Act, 1994, (PILIR). d. PILIR: i. Clause 7 (the Management of Temporary and Permanent Incapacity Leave) of PILIR expounds the Resolution and details the timeframes and obligations on both the employee and employer: ii. The employee may apply for temporary incapacity leave with full pay on the prescribed forms in terms of PILIR for each period of absence (Clause of PILIR). iii. For an application for temporary incapacity leave to be considered, the employee must provide sufficient proof that he/she is too ill to work satisfactorily and attach a medical certificate from a registered medical practitioner certifying the condition as temporary with his/her application. e. PILIR: Clause and i. The employee must submit the application for temporary incapacity leave within five working days after the first day of absence. ii. Should the employee not submit an application, the employee s supervisor must immediately notify the employee that if an application is not received within a further period of two days, the period of absence will be regarded as leave without pay. iii. Should the employee fail to submit the application (within the further two days) or fails to submit compelling reasons why the application cannot be submitted, the supervisor must immediately inform the relevant department that the absence must be covered by annual leave or as unpaid leave. 10

11 iv. Should the employee fail to submit the application within the time frames and or failure by supervisor to properly manage the process should be viewed in a serious light. v. In this case, although the applicant submitted his application outside the time frames, the respondent accepted and processed them without objection. f. PILIR: Clause and i. It is apparent that the initial obligation is on the employee to submit an application for temporary incapacity leave supported by all the relevant evidence and reports requisite to enable the Respondent to respond timeously.however, should the employee fail to do so within the prescribed time frame, provided that he has a reasonable explanation for the delay, he/she is not barred from doing so but the onus shifts to the employer (supervisor). ii. The employer must follow up with the employee and notify him/her of the need to submit an application together with the consequences should he/she fail to do so. This was not done by the employer. iii. The clause acknowledges that there will be circumstances in which the employee does not comply with the timeframes, which could be for reasons of negligence, impossibility and or ignorance, thereby placing the ultimate onus on the employer to inform the employee. iv. It is trite that the employee cannot be held responsible for the consequences of any late submission of an application where the employer has failed to comply with its obligation to inform the employee of the need and timeframe in which to submit an application. v. The employee may be subjected to a full health assessment by the appointed Health Risk Manager. This allows for a comprehensive assessment and evaluation which assists the employer to determine how the employee s duties may be adapted to accommodate his/her disability. 11

12 g. PILIR: Clause The Applicant goes on to argue that the employer is obligated (sic) to, within five days of receipt of the application to i. Verify that the application is complete and signed correctly (which includes attachment of relevant documentation) and if the application is incomplete and or unsigned, the employer must immediately return the application to the employee for resubmission within a further five days. ii. The resubmission date of the complete application will be recorded as the date of submission. iii. The provision acknowledges that there will be circumstances in which the employee submits an incomplete application (in respect of information, documents and or signatures). iv. It further places an onus on the employer to draw any defect in the application to the employee s attention and request that the application be corrected and resubmitted. Accordingly, no application should be declined for incompleteness or noncompliance as the employer is obliged to bring such error to the attention of the employee prior to the employer considering the application. 21. Determination a. Clause 13 (Temporary Incapacity leave) of the Determination outlines the requirements and process to be complied with when considering an application for incapacity leave. Many of the obligations relating to proof of illness, attachment of medical certificates and consent to disclosure of medical records by the medical practitioner are consistent with the provisions contained in the PILIR. It is argued that the employee must further notify his/her supervisor of his/her Illness immediately and submit an application within five working days of the day of the absence. b. The employer, so it is argued, is again obliged to inform the employee of the consequences of not making an application and the time frame in which to do so should the employee not submit an application within the initial five day period of absence. The employer is further obliged to conditionally 12

13 grant temporary incapacity leave with full pay for a period of thirty days subject to the outcome of an investigation into the health of the employee. c. The employer is obliged to, consistent with PILIR, approve and/or refuse the application within thirty days of the date of receipt of the complete application. 22. Determination: Clause 13 a. Medical practitioners are those persons that are certified to diagnose and treat patients and who are registered with professional councils established by an Act of Parliament. b. For the purposes of temporary incapacity leave the employer only accepts medical certificates issued and signed by practitioners registered with the Health Professions Council of South Africa. 23. Determination: Clause 15.1 and 15.5 a. The employer must notify the employee in the event that the medical certificate submitted by the employee is not in compliance with the required form and or detail (validity). b. The employer must further notify the employee that a corrected medical certificate is required within two days of notification of non- compliance. 24. INTERPRETATION/APPLICATION (APPLICANT S SUBMISSIONS) a. The Applicant argues that the interpretation and application of the Resolution means, firstly that clause 7.5.1(b) must be read with the relevant clauses in the Determination and the PILIR document and secondly that the interpretation and application of the Resolution requires one to interpret and apply clause 7.5.1(b) in the context of said policies rather than in a vacuum. b. In essence, what the Applicant argues is that the Resolution, and more particularly Clause 7.5.1(b) and the other applicable clauses in the policies referred to, supra, determine the procedures and\or time frames in terms of 13

14 which the Respondent is required to respond to an application for temporary incapacity leave. c. The Applicant s complaint in chief, at para 11 of the heads of argument in this referral is that the Respondent allegedly failed to adhere to those procedures and\or time frames, and that in turn resulted in severe prejudice to him. For the purposes of this argument, he took me into his confidence explaining that in what way he has suffered severe prejudice. Specifically he argued that the respondent arbitrarily started deducting moneys from his salary and he experienced problems meeting his obligations. This was undisputed by the respondent. It was only after he had made representations to the respondent that the monthly deductions were substantially reduced. d. In essence what he has done is to refer the matter so that it could be determined at arbitration, whether the Respondent was obliged to have adhered to and to have given effect to what the resolution, read in conjunction with the applicable policies, required. I note that he strongly argued that the Respondent is or was obliged to adhere to the procedures in the context of the current case, the facts which require an objective as well as critical assessment and evaluation. e. The Respondent, he rightly points out was obliged to approve or refuse the application for temporary incapacity leave within thirty days of receipt of the application and medical certificates. 25. The PILIR policy it is argued clearly states that: a. Incapacity leave is not an unlimited amount of additional sick leave days at an employee s disposal. Incapacity leave is additional sick leave granted conditionally at the employer s discretion, as provided for in the Determination and PILIR. b. However, before the point is reached where this additional sick leave may be granted at the employer s discretion, both the employee and employer have to follow the procedures and timeframes set out in the two policies. Moreover, the discretion afforded to the Respondent was to be exercised judiciously after compliance with agreed guidelines and established 14

15 process. It is the failure of the Respondent to interpret, apply and comply with process and respective policies that is in issue. 26. In Clause 6 of PILIR, the employer s obligations and responsibilities are stated quite categorically : a. The employer shall in terms of PILIR be responsible to process applications and complete reports within specified timeframes. b. While there are clear timeframes that the employer has to take once it receives the applicable documentation from the employee, there are also timeframes that the employee has to meet. It is submitted that as the initial obligation rests on the employer, unless the employer fulfils that obligation, it has to follow that there can t be a resultant obligation on the employee. However, in the event that the employer fulfilled that obligation and the employee did not meet the said prescribed timeframes and/or other requirements, the policies start afresh or further obligation rests on the employer to ensure that the employee meets those obligations. 27. Applicant submits 23 in argument that the Respondent did not have the discretion to deviate from the procedures set out in the Resolution and/or those set out in the Determination and PILIR policies, but was compelled to adhere to the procedures and timeframes. - In the circumstances where there was deviation, the Respondent was in breach of a collective agreement. 28. I was referred to the case of Public Servants Association (PSA) obo Liebenberg v Department of Defence and Others-(2013) 22 LC where the Court found that where the employee and her union were dissatisfied with the employer s refusal to grant temporary incapacity leave and the procedure for granting or refusing such leave was governed by the collective agreement, her remedy lay in the referral of a dispute over the application of the agreement to the bargaining council in terms of Section 24 of the LRA. 29. I was also referred to the case of Public Service Association of South Africa and Another v PSCBC and Others [2013] ZALCD 3 (26 February 2013), in which the Applicant argued the Labour Court resolved that employees cannot be subjected to retrospective leave without pay when an application for incapacity leave is declined. Such leave without pay can only be implemented from a date 23 See para 40 of his closing statement. 15

16 given to the employee to return to work, if the employee fails to return to work on the day. 30. CONCLUSION a. Thus, it s argued that the Respondent incorrectly interpreted and applied the provisions of the Resolution in accordance with the plain meaning especially in circumstances where its supplementary policies (PILIR and the Determination) provide both procedures and time frames. b. Further, the Respondent has failed to implement and apply the provisions of the Resolution and in so doing, has failed to comply with its obligations. c. Consequently, the entire process of considering the Applicant s applications for short and long term temporary incapacity leave concluded by the Respondent is flawed. 31. RELIEF SOUGHT a. The Applicant prays for an order in the following terms: i. The Respondent incorrectly interpreted and applied the provisions of Resolution 7 of 2000 in relation to the Applicant s application for Temporary Incapacity Leave; ii. As a result of the foregoing, the Applicant suffered severe financial prejudice; iii. The Applicant s applications for the leave for the periods in question be approved with full pay; iv. The Respondent be ordered to repay any monies deducted from the Applicant s salary. Respondent s Case 32. Ms N Simamane testified for the respondent. She is an Assistant Director HRM Department of Human Settlements KZN and is based at Samora House. 33. She explained that when an employee exhausts his normal leave i.e. 36 days in a 3 year cycle, that employee must apply for additional paid sick leave by completing Temporary Incapacity Leave applications. 16

17 34. She admitted that the applicant completed and forwarded his TIL applications to HR, and these applications were accepted and processed even though they were submitted out of time. 35. She testified that in the case of the applicant, the same procedure was followed. 36. She confirmed that the applicant s applications were declined and he was accordingly informed on the 30 th March She also confirmed that the applicant submitted further particulars and requested for a review of his applications after being informed that they were declined. 38. The applicant s applications were re-submitted for review and 22 days were subsequently by way of concession approved and he was informed about this on the 16 th August She explained that in terms of PILIR policy, if application is declined, vacation leave must be utilised and then leave without pay must be implemented. 40. She testified as required by law, the respondent began deductions based on the 16 th August 2011 letter to the applicant. 41. She recalled that the applicant objected to such a large monthly amount being deducted and the financial prejudice as a result thereof the deduction was reduced. 42. The outstanding balance was deducted from the applicant s benefits upon retirement. 43. On cross examination she conceded that the respondent failed to adhere to 7.5 of PSCBC Resolution No. 7 of The forgoing as well as the arguments and evidence that follow which have not be refuted by the Applicant, since it was common cause, presented by the Respondent are as follows 44. After exhausting his normal sick leave of 36 days, the applicant has taken 111 days sick leave of which 24 days were granted. 45. It argues that the applicant was duly advised which was never denied by the applicant. 46. It was also argued, by implication that the granting of incapacity leave is at the discretion of the respondent and in exercising such discretion it is incumbent upon the respondent that any decision taken must be on a fair and equitable basis. By that same rationale therefore, by accepting late applications for TIL, the respondent had exercised its discretion to accept and process, the only issue being was the decision declining the applications fair and equitable. The applicant argues that the decisions were not and in fact followed by arbitrary deductions without further reference to the applicant whose input was necessary. 17

18 47. For an application for temporary incapacity leave to be considered, the employee was obliged to furnish sufficient proof that he/she was too ill to work. The respondent did not argue before me that the applicant did not fall in that category. 48. Given the foregoing, the respondent prayed that the dispute be dismissed on the basis that substantive reasons existed for the granting of leave without pay to the applicants for his periods of absence. The problem with this line of argument is that the respondent does not amplify what these substantive reasons, if they exist, were. ANALYSIS OF EVIDENCE AND ARGUMENT 49. I have the power to give effect to collective agreements in terms of Section 138(9). It is then open to me to set aside the decision of respondent to reject Applicants application if, based on the conspectus of evidence and argument before me, I am persuaded that this is appropriate. 50. The seminal case of Public Service Association of South Africa and Another v PSCBC and Others 24 is of great assistance in this matter before me. Specifically, in this case, the court held that interpretation entails a process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence In that case referred to in para 42 supra, the court went on to hold that whatever the nature of the document was, consideration had to be given to the language used in the light of the ordinary rules of grammar and syntax, the context in which the provision appears, the apparent purpose to which it is directed and the material known to those who are responsible for its production And where more than one meaning is possible, each possibility must be weighed in the light of all these factors. The process, it held is objective and not subjective. In other words based according to the factual matrix and circumstances informing each case. 52. The courts states that we must prefer a sensible meaning to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document (ibid). Like judges, I must be alert to and guard against the temptation to substitute what I regard as reasonable sensible or businesslike for the words 24 [2013] ZALCD 3 (26 February At para ibid

19 actually used. If I did that I would be guilty of exceeding my authority as I would cross the divide between interpretation and legislation. In a contractual context such as in this case, it is to make a contract for the parties other than the one that they in fact made. 53. The recent case of Public Servants Association of South Africa obo Potgieter v Department of Trade and Industry and Others 27 is also helpful. Like the present matter there were multiple applications for temporary incapacity leave. Like the Public Service Association of South Africa and Another v PSCBC and Others, supra there were no factual disputes. 54. The relief that Applicant seeks is in the following terms: i. The Respondent incorrectly interpreted and applied the provisions of Resolution 7 of 2000 in relation to the Applicant s application for Temporary Incapacity Leave; ii. As a result of the foregoing, the Applicant suffered severe financial prejudice; iii. The Applicant s applications for the leave for the periods in question be approved with full pay; iv. The Respondent be ordered to repay any monies deducted from the Applicant s salary and immediately stop any further deductions from the Applicant s salary. 55. I am persuaded that the Applicant has made out a case to grant him the relief he seeks. As in Public Service Association of South Africa and Another v PSCBC and Others (supra) there are factual disputes that are put in issue and have to be considered. 56. My reasons though not exhaustive are set out as follows: a. The Applicant s complaint in chief in this referral was that the Respondent allegedly failed to adhere to those procedures and\or time frames, and that in turn resulted in severe prejudice to him. For the purposes of this argument, he went a great length to take me into his confidence in what way he has suffered severe prejudice. b. In essence what she has done is to refer the matter so that it could be determined at arbitration, and presented oral argument and evidence to gainsay his version that the Respondent was obliged to have adhered to 27 [2016] ZALCJHB 52 (12 February

20 and to have given effect to what the resolution, read in conjunction with the applicable policies, required. c. Applicant submitted in argument that the respondent did not have the discretion to deviate from the procedures set out in the Resolution and/or those set out in the Determination and PILIR policies but was compelled to adhere to the procedures and time frames. In the circumstances where there was deviation, it argued that the respondent was in breach of a collective agreement. I agree d. Procedurally, although the applicant submitted his applications belatedly, it was argued by the respondent, was advised of respondent s decision regarding her application for incapacity leave. e. Furthermore like in Public Servants Association of South Africa obo Potgieter v Department of Trade and Industry and Others (supra) the applicant was required to comply by the Respondent s Health Risk Manager as he was obliged to and he did reasonably comply. 57. Based on the conspectus of evidence before me I am inclined to agree with the applicant. 58. In summary I conclude that the respondent has incorrectly applied/interpreted the provisions of Resolution 7 of 2000 read with the applicable Directive and PILIR. 59. I therefore conclude that it was unreasonable for the Respondent act as it did and I have found that this was in contravention of the Resolution or any of the applicable supporting prescripts. AWARD (a) I find in favour of the applicant. (b) The respondent has incorrectly applied/interpreted the provisions of Resolution 7 of 2000 read with the applicable directives/prescripts in relation to the applicant s application for temporary incapacity leave with respect to the applicant A.D Abrahams. (c) As a result thereof, the applicant suffered severe financial prejudice. (d) The applicant is therefore entitled to the relief he seeks in the following terms:- i. The applicant s applications for the leave for the periods in question be approved with full pay. 20

21 ii. The respondent be ordered to repay or refund all monies deducted from the Applicant s salary and benefits upon retirement, as follows:- 118 days in TOTAL 24 days approved days declined (e) There is no order as to costs. 94 x R = R SIGNED AT DURBAN ON THIS 30 th September 2016 Saber Ahmed Jazbhay PSCBC Arbitrator 21