IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD AT CAPE TOWN

Transcription

1 IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD AT CAPE TOWN CASE NO: PSCB /14 SAPU obo Zeelie, DA APPLICANT and DEPARTMENT OF CORRECTIONAL SERVICES RESPONDENT ARBITRATION AWARD DATE OF ARBITRATION : 16 September 2013 CLOSING ARGUMENTS: : 23 September 2013 DATE OF AWARD : 25 September 2013 ARBITRATOR : I de Vlieger-Seynhaeve PSCB /14: Arbitration award Page 1 of 6

2 1. DETAILS OF HEARING AND REPRESENTATION 1.1 Ms Mosetic from the PSA, represented the Applicant. The Respondent, was represented by Mr Nxele. 1.2 The proceedings were recorded digitally. 2. ISSUE TO BE DECIDED 2.1 The issue to be determined is whether the respondent correctly interpreted and applied the provisions of Resolution 7 of SURVEY OF EVIDENCE 3.1 The parties made the following legal submissions. The facts are as follows: The Applicant stated that he got sick during his holiday leave in December He was admitted to hospital on 4 January 2012 and was discharged on 11 January 2012 for Cystoscopy. After he was discharged he had serious backache and went through a scan. The doctor confirmed that he needed a back operation (Discectomy). Once the medical aid approved his admission, he was operated on 23 January He was discharged on 27 January He was first booked off until 5 March However, that was later extended to 15 March After his sick leave, the applicant returned back to work on 16/03/2012 and he submitted his application for TIL on 23 January His application for TIL was approved until 5 March The remainder, from 6 March 2012 until 15 March 2012, was not approved. A letter from the respondent, dated 9 May 2012, confirmed the nonapproval and advised him that he could submit additional documentation by 18 May He received feedback on 10 July 2012 stating that this application was denied. He submitted all his documents PSCB /14: Arbitration award Page 2 of 6

3 on time and also filed a grievance on 22 November He was advised that condonation could not be granted in terms of his late referral. He submitted extra doctor's letters dated 22 May 2012, 4 September 2012 and 9 April Paragraph 7.5 of Resolution 7 of 2000 states that the employer shall, during 30 working days, investigate the extent of the inability to perform normal official duties, the degree of the inability and the cause thereof. The respondent failed to do so As relief he claims that his leave record will be credited with 10 days leave; or alternatively, that he is compensated for 10 days Ms Sebotsa, the Area Commissioner, stated that she bases her decisions, on whether to approve or not to approve a TIL application, on the recommendations made by the Health Risk Manager. Therefore, she disapproved part of the TIL. The applicant was informed and additional information was submitted. The application was then reconsidered and declined again. The applicant was informed accordingly. 4. ANALYSIS OF EVIDENCE AND ARGUMENT 4.1 I have considered all the evidence and argument, but because the LRA requires brief reasons (s 138(7)), I have only referred to the evidence and argument necessary to substantiate my findings and decision. 4.2 I first would like to deal with the jurisdiction to hear the matter. I hereby refer to the judgements in Minister of Safety and Security v Safety and Security Sectoral Bargaining Council and Others (2010) 31 ILJ 1813 (LAC) and PSA obo De Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) where it was decided that the BC has jurisdiction to entertain disputes about the application and interpretation of Resolution 7 of 2000 in terms of section 24 of the LRA. PSCB /14: Arbitration award Page 3 of 6

4 4.3 Paragraph 7.4 and 7.5 of the PSCBC Resolution 7 of 2000 deal with normal sick leave and with incapacity management in excess of the 36 days normal sick leave. An employee, who has exhausted its 36 days sick leave, MAY be granted additional sick leave (TIL) on full pay where the provisions of paragraphs (a) (i) & (ii) of Resolution 7 of 2000 are complied with and the employer, after investigations, including investigations in accordance with item 10(1) of Schedule 8 of the LRA, so decides. Resolution 7 of 2000 is amplified by the Policy and Procedure on Incapacity Leave and Ill-Health retirement (PILIR), determined in terms of section 3 (2) of the Public Service Act 1994, as amended by the Minister for Public Service and Administration. The employer has a discretion to grant the TIL, although it needs to exercise its discretion properly (must take into account relevant information, follow laid down procedures and act within the framework of the Collective Agreement). Not every failure on the part of the employer to comply with the Collective Agreement will necessarily result in a claim of right on the part of the employee. The employee still needs to show that he qualified for the relief sought, that the employer failed to comply with the agreement and in doing so prejudiced him (see also PSCB601-11/12). 4.4 The applicant s case in essence is that by virtue of the respondent s failure to comply with the provisions of paragraph (b) his application was not fully approved. 4.5 In terms of paragraph (b) of Resolution 7 of 2000: The employer shall, during 30 working days, investigate the extent of the 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 applicant submitted his TIL application on 23 January He received feedback on 18 May 2012, in a letter dated 9 May 2012, that PSCB /14: Arbitration award Page 4 of 6

5 part of his application has been disapproved. In that letter it is stated that he can submit additional information since the HRM wants to see a justification for the period 05/03/12 15/03/12 indicating any postoperative complications or that he was re-submitted to hospital. 4.7 The HRM, in declining the second application dated 19 June 2012, referred to the recommended recovery period according to the Medical Disability Advisor (MDA). In order for the HRM to approve additional leave days, in addition to the approved MDA period, they needed to be informed about the clinical reasons which inhibited the applicant's recovery. However, the doctor's certificate only mentioned that the applicant had not fully recovered yet. Since that was not sufficient the TIL could not be approved. 4.8 I have no problem with the decision taken by the HRM. They specifically stated what they needed in order to reconsider the application and they did not receive a sufficient explanation. If the doctor's certificate had stated the reasons why the applicant had not recovered yet, the application would probably have been approved. Although one can argue that everyone knew that the applicant was sick and that he had never applied for TIL before (therefore suggesting that he does not abuse the procedure), this cannot supersede the documentation that needs to be submitted. If one would simply ignore the rules and regulations, the Area Commissioner could just approve any TIL, irrespective of what the HRM advises. I also see no justification why the Area Commissioner, in this matter, should have approved the application against the advice of the HRM, when the advice is reasonable. It was further submitted that the Department should have taken Dr Van Niekerk's report into account which mentions the other illnesses that the applicant has. I do not agree with that submission. There was never any evidence led which linked the extension of the sick leave to any of the illnesses. The letter is simply a referral letter to another doctor giving background about the patient. PSCB /14: Arbitration award Page 5 of 6

6 4.9 The applicant further submitted that he was informed late about the non-approval of his second part of the TIL and therefore the respondent breached the collective agreement where it is stated that feedback should be given within 30 days. The applicant submitted his TIL application on 23 January He stated to have received the feedback on 18 May 2012, in a letter dated 9 May The applicant further confirmed that he was told verbally by Mr Louw that they needed additional information. As a consequence, he obtained 2 doctor's certificates dated 22 May 2012 which were submitted and considered. Even if the feedback was received after 30 days, the delay was not very long. Furthermore, I have no proof before me that confirms that the applicant was prejudiced because of that delay. Therefore, I do not find that the respondent breached the Resolution. 5. AWARD 5.1 The respondent is not in breach with Resolution 7 of The application is hereby dismissed; 5.3 There is no order as to costs. SIGNED AT Cape Town ON THIS 25 th DAY of September 2013 I De Vlieger-Seynhaeve PSCBC Arbitrator PSCB /14: Arbitration award Page 6 of 6