Case Number: PSCB248-14/15 Commissioner: Kelvin Kayster Date of Award: 10 February And. Butterworth 4960

Transcription

1 ARBITRATION AWARD Case Number: PSCB248-14/15 Commissioner: Kelvin Kayster Date of Award: 10 February 2015 In the ARBITRATION between Qeqe M. (Union/Applicant) And Department of Education Eastern Cape (Respondent) Union/Applicant s representative: Mr. M. Randell Union/Applicant s address: P.O. Box Centrahill Port Elizabeth 6006 Telephone: Telefax: mike@randlaw.co.za Respondent s representative: Respondent s address: Mr. T. Makina Private bag X3019 Butterworth 4960 Telephone: Telefax: Page 1

2 DETAILS OF HEARING AND REPRESENTATION: 1. The arbitration hearing in this dispute was scheduled for 21 January 2015 at the offices of Respondent in Butterworth. 2. The Applicant is Mr. Mawande Qeqe, an employee in the service of the Respondent. The Applicant was represented by Mr. Randell of Mike Randell Attorneys. 3. The Respondent is the Department of Education and was represented by Mr. Makina. 4. The parties further agreed to submit written closing arguments by not later than 30 January ISSUE TO BE DECIDED: 5. The matter was referred to the PSCBC as a dispute relating to the interpretation/application of PSCBC Resolution 7/2000, as amended. The Applicant referred this dispute to the PSCBC after the Respondent allegedly failed to process his applications for temporary incapacity leave (TIL) for specified periods, resulting in deductions being made from his salary for the said periods. I am called upon to determine whether or not the Respondent correctly applied the said Resolution 7/2000. BACKGROUND TO THE ISSUE: 6. The parties are in disagreement about several aspects relating to the background of this dispute. The applicant suffered from depression and anxiety disorder when he was still attached to a school in Cradock. He received psychological treatment for blackouts and seizures. He was often hospitalized. He was transferred to the Butterworth district, but still received treatment from medical practitioners in Port Elizabeth. He exhausted his sick leave and alleges that he applied for TIL on various occasions. He further alleges that he never received any feedback on these applications. 7. The respondent regarded his absence as unauthorized and began to make deductions from his salary for leave without pay (LWP). He lodged a grievance, but it was not attended to. He even instituted legal action on more than one occasion to obtain more information on his TIL applications. He eventually referred this dispute to the PSCBC. 8. The respondent is adamant that the applicant did not submit any TIL applications, and that the respondent acted correctly and in line with the leave imperatives. The respondent further submitted that the processes for LWP were done in line with the Department of Public Service and Administration (DPSA) imperatives. Page 2 of 7

3 SURVEY OF SUBMISSIONS: Applicant s submissions: 9. The applicant, Mr. Mawande Qeqe testified that he was transferred from Calata School in Cradock to the Butterworth district office in January 2012 after he fell ill following conflict with his erstwhile school principal. He received psychological treatment from various practitioners, some of whom labelled his condition as work-related. While in Cradock he was advised per letter that he has exhausted his sick leave. He applied for TIL and requested his sister, who worked at the respondent s office in Cradock, to hand in his applications. He never received any feedback on these applications. He referred to several payslips and pointed out that exorbitant amounts were deducted from his salary for LWP without his permission. 10. The applicant further testified that his legal representative brought High Court applications to compel the respondent to provide documentation and further information on his TIL applications. The respondent ignored the Court orders to the extent that he had to apply for an order of contempt. He also brought an order to compel the respondent to provide documentation relating to the deductions for LWP. The respondent did not comply with any of the Court orders. The respondent also failed to process his grievance. 11. In cross-examination the applicant admitted that the conflict with the school principal in Cradock emanated from the fact that funds got lost under his watch. He was not certain of the time period when the conflict started and made contradictory statements about the specific year. He was not sure how many applications for TIL he lodged. He did not keep copies of the applications, but do have copies of the medical certificates. He however insisted that he duly submitted the applications and even attached the relevant medical certificates. He admitted that he did not resubmit the TIL applications when the district director alerted him to it in writing on 15 September After he submitted a grievance he was contacted by Ndunge, who advised that they did not know anything about the LWP deductions because it was initiated by the Cradock office. The applicant explained that he had been absent since 2012 and only reported back at work a week prior to the arbitration hearing. He submitted TIL applications for the period from January to June 2013, for July 2013, and also for the period September to December He also submitted applications for the whole of 2014, of which he kept copies. For the other instances of absence he utilized his sick leave entitlement. Page 3 of 7

4 Respondent s submissions: 13. Mr. Siyabulela Kapela is the respondent s leave practitioner in the Butterworth district office. He explained the procedure when applying for TIL. When an employee applies for TIL his/her supervisor would sign as witness and the application form is submitted to the Deputy Director: Human Resources (DD-HR). It then goes from HR to the leave practitioners. He admitted that his office is third in line when processing TIL applications, but denied that his office has ever received any TIL applications from the Applicant. ANALYSIS: 14. This dispute relates to the application of PSCBC Resolution 7 of 2000, as amended (The Collective Agreement on the improvement in the conditions of service of public service employees). The Applicant referred the dispute to the PSCBC after the Respondent made deductions from his salary for LWP after it was alleged that he failed to apply for TIL for his periods of absence. The relevant provision to this dispute can be found in clause of Resolution 7 of It reads as follows: Temporary disability leave: (a) An employee whose normal sick leave credits in a cycle have been exhausted and who, according to the relevant practitioner, requires to be absent from work due to disability which is not permanent, may be granted sick leave on full pay provided that: (i) (ii) her or his supervisor is informed that the employee is ill; and a relevant registered medical and/or dental practitioner has duly certified such a condition in advance as temporary incapacity leave except where conditions do not allow. (b) (c) The employer shall, during 30 working days, investigate the extent of inability to perform normal official duties, the degree of inability and the cause thereof. Investigations shall be in accordance with item 10(1) of Schedule 8 in the Labour Relations Act of The employer shall specify the level of approval in respect of applications for disability leave. 15. There clearly exists a factual dispute about whether or not the Applicant ever submitted the TIL applications. The dispute hinges on this question. The Applicant submitted that he requested his sister and aunt in Cradock and Butterworth respectively to hand in the applications. He however did not call either of them as witness to corroborate his version. On the other hand the Respondent denied that it ever Page 4 of 7

5 received any TIL applications from the Applicant. The Respondent similarly did not call a witness to testify about the situation in Cradock, but called the Butterworth leave practitioner Mr. Kapela who denied that his office ever received TIL applications from the Applicant. Mr. Kapela however conceded that his office is the third stage in the processing line to receive applications. He however conceded that there may be delays or that the applications may not have been handed to him by the other stages before him. 16. At the commencement of the arbitration proceedings the Respondent accepted the form and content of the Applicant s documents, except to state that it is not in a position to comment on the Court applications. In response to a letter from the State Accountant advising him of the debt account resulting from the LWP, the Applicant referred to a conversation between his aunt and District Director Mr. Swanepoel and explained that he has indeed submitted all the necessary documentation. His letter was not responded to. 17. The Applicant s testimony related to the legal action stands undisputed. It is rather significant that the Applicant s legal representative wrote directly to Head of Department (HOD) in May 2013 together with a Request for Access of Public Body in terms of the Promotion of Access to Information Act no. 2 of 2000 (PAIA), requesting the outcome of the Applicant s TIL applications. The request went unanswered and was repeated in October It remained unanswered and was followed by an application to the High Court for disclosure of the documentation upon which the Respondent relied for the LWP deductions. Again the Respondent did not comply with the Order. Another similar order was granted in the High Court on 06 May 2014, but still the Respondent failed to comply. The Applicant eventually lodged a grievance, and referred this dispute to the PSCBC when the Respondent still failed to comply with the Court Orders. 18. It is inconceivable that an employee would go to such lengths and legal expenses if he simply did not submit any TIL applications. Therefore, the most plausible inference I can draw from the Applicant s endeavours is that he has indeed submitted TIL applications, and that the Respondent failed to process those applications. It is therefore evident that the Respondent was indeed in breach of clause of Resolution 7 of I also deem it necessary to comment on the deductions made from the Applicant s remuneration. In some instances the Respondent deducted almost the full salary to the extent that the Applicant was paid a netto salary of only R14.11 and R This is a clear violation of section 34 of the Basic Conditions of Employment Act (BCEA), in that the deductions exceeded 25% of his salary. Furthermore, the Applicant never granted permission for these deductions to be made. 20. The Applicant seeks an order that the TIL applications be approved, and that the Respondent be ordered to reimburse the deductions made from his income. I am called upon to consider whether or not the Page 5 of 7

6 collective agreement was complied with, and to grant competent relief to remedy any non-compliance with the collective agreement. The question that arises is whether or not the Respondent s noncompliance with prescripts (that resulted in the deductions being made) was fair. The yardstick in labour issues is based on the principle of fairness. Fairness dictates that the employer s discretion should be exercised fairly and in compliance with legal prescripts. The failure to comply with the prescripts prejudiced the Applicant and is accordingly sufficient ground for the Respondent s decision to be set aside. The Respondent s conduct flies in the face of what the collective agreement has intended and is in direct conflict with the principles of fairness. 21. Therefore, the setting aside of the decision to convert his absence to LWP, and an order to reimburse the deductions, would in my view constitute competent relief in the circumstances. In setting aside the deductions I am in no way crediting the Applicant with leave, but I am rather restoring the situation that would have prevailed had it not been for the Respondent s unfair conduct. I am similarly also not approving the applications for TIL, but I am simply reversing the situation to the stage before the Respondent s unfair conduct occurred. 22. Despite my request, the parties in their closing arguments failed to give an indication of the amounts of money (for unpaid leave) that were deducted from the Applicant s remuneration. I was therefore not placed in a position to quantify the amount that should be refunded to the Applicant. I am however willing to vary this award in order to quantify the refund if the need arises. I consider it fair and just to set aside the conversion of the Applicant s absence to LWP (until the Respondent complied with the prescribed processes), and to also order the Respondent to reimburse the deductions made from the Applicant s salary. In the premise I make the following award: AWARD: 23. The Respondent failed to comply with clause 7.5.1(b) of Resolution 7 of The Respondent s act of making deductions from the Applicant s remuneration for the stated periods is hereby set aside. 25. The Respondent is directed to nullify the Applicant s debt account with immediate effect. 26. The Respondent is directed to reimburse the deductions made from the Applicant salary for leave without pay. Such reimbursement is to be made on or before 31 March Page 6 of 7

7 Signature: PSCBC Panelist: Kelvin Kayster Page 7 of 7