Case Number: PSCB /14 Commissioner: Kelvin Kayster Date of Award: 02 October And

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1 ARBITRATION AWARD Case Number: PSCB /14 Commissioner: Kelvin Kayster Date of Award: 02 October 2014 In the ARBITRATION between PAWUSA obo Ureche F. (Union/Applicant) And Department of Health Eastern Cape (Respondent) Union/Applicant s representative: Mr. G. Fortuin (PAWUSA) Union/Applicant s address: P.O. Box 1345 Port Elizabeth 6000 Telephone: Telefax: portelizabethmail@pawusa.org.za Respondent s representative: Mr. P. Qwayiza Respondent s address: P.O. Box Greenacres Port Elizabeth 6057 Telephone: Telefax: Page 1

2 DETAILS OF HEARING AND REPRESENTATION: 1. The arbitration hearing in this dispute took place on 10 and 16 September 2014 in Port Elizabeth. The matter was referred to the PSCBC as a dispute relating to the interpretation/application of PSCBC Resolution 3 of The Applicant is Dr. Florentina Ureche, an employee in the service of the Respondent. The Applicant was represented by Mr. Fortuin of PAWUSA. 3. The Respondent is the Department of Health and was represented by Mr. P. Qwayiza. 4. The parties submitted oral evidence and agreed to exchange and then submit written closing arguments on or before 23 September I received written arguments from both parties, but have not received any replying submissions by 30 September 2014 when I commenced with this award. ISSUE TO BE DECIDED: 5. The matter was referred to the PSCBC as a dispute relating to the interpretation/application of PSCBC Resolution 3/1999, as amended. The Applicant referred this dispute to the PSCBC after the Respondent declined her application for vacation leave. I am called upon to determine whether or not the Respondent correctly applied the said collective agreement. BACKGROUND TO THE ISSUE: 6. The background of the dispute is mostly common cause. The Applicant is a medical doctor grade 3 at the pediatric section of the Dora Nginza Hospital and had been in employment of the Respondent since On 10 July 2013 she submitted an application for vacation leave for the period 28 August 2013 to 04 October She fell ill on 15 August 2013 and was on approved sick leave until 28 August She had emergency surgery during this time. She went on vacation leave to Romania on 28 August 2013 and reported back for duty on 08 October Her Head of Department Dr. Pepeta (HOD) informed her verbally on 09 October 2013 that her vacation leave was never approved. The Respondent subsequently implemented leave without pay (LWP) for the period that she was on sick leave and started making 17 monthly deductions of R from her salary since 15 December 2013 onwards. 8. The Applicant submits that the Respondent incorrectly applied the provisions of PSCBC Resolution 3/1999. She seeks an order that her application for vacation leave be approved and that the deductions are refunded. Page 2 of 6

3 SURVEY OF EVIDENCE AND ARGUMENTS: Applicant s submissions: 9. Apart from the issues that are common cause, the Applicant Dr. Florentina Ureche testified that she left her application for vacation leave in the leave book with the HOD s personal assistant, as per standard procedure. The procedure had been in existence even before the current HOD became her supervisor in 2010/2011. She had on previous occasions also submitted leave applications and had never received any feedback. On certain occasions their leave applications were approved only after their return from vacation leave. She reported for duty every day since she submitted her application on 10 July 2013, but the HOD never consulted or communicated with her about the application. Upon her return from vacation leave the HOD informed her that her leave application was not approved because she failed to discuss it with him. 10. The HR office advised her on 06 November 2013 that LWP would be deducted from her salary, although she had sufficient leave credits left. The Respondent did not take any disciplinary steps against her for unauthorised absence. She conceded that she did not verify whether her application for leave was approved, but insisted that it had been the practice that they never did it. 11. The Applicant argued that the HOD had ample time to discuss her leave application with her if it would interfere with the department s operational requirements, but he never did. She does not work overtime, and there could therefore be no interference with the unit s operations. Several doctors in the department are from foreign countries and usually take their annual leave entitlement all at once. It had never been a problem. They only review their applications when too many doctors apply for leave at the same time. 12. Mrs. Daphne Terblanche works as PA for the HOD. She normally receives the leave application forms and hands it to the HOD for final approval. Employees are required to verify whether their applications for leave were approved. If the HOD does not approve leave, he would discuss it with the leave applicant. On 28 August 2013 when the Applicant s leave commenced the HOD was looking for her, but they could not find her. He accordingly placed her application for leave on hold. The leave application form shows that it was declined on 07 August 2013, but she was not sure whether the Applicant was informed accordingly. The HOD never handed the document back to her, or instructed her to call the Applicant to his office. He only requested her on 28 August 2013 to call the Applicant when a problem arose in the unit. 13. Mr. Brian Isaacs is an HR specialist in the Respondent s employment. He explained that it is unusual to receive a leave application more than a month after the application was made. It disrupts their record keeping and statistics. It is also unfair towards an employee. Despite any possible internal arrangement the Applicant should have been made aware that her leave was not approved. He discussed this specific Page 3 of 6

4 instance with the HOD, and was told that they were experiencing an extremely busy time. He explained that LWP may be implemented if an employee goes on unauthorised leave, even in instances where an employee had sufficient vacation leave credits. Respondent s submissions: 14. Dr. Lungile Pepeta testified that the medical officers usually discuss leave periods amongst themselves in order to avoid a situation where too many officers take leave at the same time. There is also a rule that officers take two weeks leave in the first semester and the remaining two weeks leave in the second semester. If leave exceeds the stipulated period it should be discussed with the HOD in view of the operations of the unit. The Applicant never approached him to discuss her application for extended vacation leave. He declined her application even before her leave was supposed to commence. His main consideration was service delivery. Although the Applicant acted in similar manner in the past, he overlooked it on humanitarian grounds. His working relationship with the Applicant was not sound, because she did not follow guidelines. 15. Dr. Pepeta further testified that it was not his responsibility to inform the Applicant that her leave application was declined. This was the first time ever that he declined a leave application. He was also on leave during July 2013, hence the time period it took for him to consider the Applicant s leave application. ANALYSIS: 16. Herewith brief reasons for my ruling. The Applicant submits that the Respondent failed to comply with the provisions of the collective agreement PSCBC Resolution 3/1999 in that it unfairly declined her applications for vacation leave. The parties submitted several documents, including the relevant Resolution, extracts from the Respondent s Leave Policy, as well as the Delegation of Powers. 17. It is common cause that the Applicant submitted an application for vacation leave on 10 July 2013; some 7 weeks before her intended vacation leave. It is further common cause that the HOD never called her in or discussed the leave application with her. The leave application form shows that the HOD declined the application on 07 August It is also common cause that the Applicant was not informed at the time by the HOD or his PA that the application for vacation leave was declined. She fell ill on 15 August 2013 and did not report for duty until her leave commenced on 28 August The HOD informed her in passing that her leave application was declined only after her return from leave on 09 October Clause of the leave policy stipulates that it is the responsibility of employees to confirm with the authorizing manager/hod/executing authority whether an application for annual leave has been approved Page 4 of 6

5 in order to avoid taking unauthorised leave. It is common cause that the Applicant did not verify with the HOD or his PA whether her leave application was indeed approved. The Respondent argued strongly that the Applicant should have complied with this stipulation before going on leave, and that the leave application was declined because of her failure to do so. 19. The Applicant testified, and the HOD admitted, that her previous leave applications had never been declined, despite the fact that she never verified with her HOD about its approval. Furthermore, the HOD admitted that he often approved leave applications only after employees returned from leave. He attributed it to his busy schedule. 20. The Applicant referred to the Delegation of Powers and argued that paragraph 46 stipulates that unpaid vacation leave may only be approved in exceptional instances and only after an employee s full leave entitlement have been exhausted. The reference to this stipulation is in my view not correct. It refers to instances where an employee applied for unpaid vacation leave whilst still having vacation leave credits. The situation at hand differs slightly. The Applicant applied for vacation leave, and not for LWP. Moreover, Mr. Isaacs explained that in instances where an application for vacation leave is declined, such absence is captured as LWP. 21. It is abundantly clear that leave applications in the unit were handled in a shoddy and haphazard manner. I have the world of sympathy with the Applicant, because she has fallen victim to this shoddy and unfortunate practice. Unfortunately, in a dispute of this nature my authority is limited to interpretation of the resolution and policies, and not the fairness of its application. To fall within the scope of section 24(4) of the LRA, a dispute must concern the interpretation or application of the agreement, not the fairness of its application. This was confirmed in various judgments, e.g. PSA obo Liebenberg v Department of Defence (2013) 34 ILJ 1769 (LC); Department of the Premier, Western Cape v Plaatjies NO [2013] 7 BLLR 668 (LC); Public Servants Association obo Strauss v Minister of Public Works NO [2013] 7 BLLR 710 (LC). The Applicant had an obligation to verify whether her application for vacation leave was approved. She was placed in an even more difficult position when she fell ill and could not report for duty as she was on sick leave from 15 to 28 August Furthermore, the shoddy handling of leave in the unit aggravates the unfairness of the situation. As stated however, I do unfortunately not have the authority to rule on the fairness of the practice, but I am only limited to the interpretation of the policies and the resolution. 22. I do not believe that I have the authority as arbitrator to approve an application for leave See in this regard Combrink v SAPS [2010] 11 BALR 1127 (PSCBC) where the arbitrator found that such a dispute falls outside the scope of section 24(2) of the LRA. He held that although on the face of it a refusal may Page 5 of 6

6 seem unfair, the proper remedy for an employee wishing to challenge the exercise by the delegated authority of his discretion was an application for review by a competent court. See also Department of Justice and Constitutional Development v Johnson N.O. & Others (Labour Court case C36/2010). 23. In view thereof it is my finding that the Respondent applied the stipulations of Resolution 3/1999 correctly. AWARD: 24. The Department of Health correctly applied the provisions of PSCBC Resolution 3 of Signature: PSCBC Panelist: Kelvin Kayster Page 6 of 6