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[2013] ZALCD 3
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Public Service Association of South Africa and Another v PSCBC and Others (D751/09) [2013] ZALCD 3 (26 February 2013)
3
IN THE LABOUR COURT OF SOUTH AFRICA
Held at DURBAN
Case No:
D751/09
Reportable
In
the matter between:-
PUBLIC
SERVICE ASSOCIATION OF SOUTH AFRICA
........................
First
Applicant
HC
GOUVEA
.........................................................................................
Second
Applicant
And
PSCBC
..................................................................................................
First
Respondent
COMMISSIONER
R LYSTER
.........................................................
Second
Respondent
THE
DEPARTMENT OF LAND AFFAIRS
(RURAL
DEVELOPMENT AND LAND REFORM)
..............................
Third
Respondent
Heard:
26 July 2012
Delivered:
26 February 2013.
Summary:
Review of an arbitration award – interpretation of a collective
agreement – principles of interpretation.
Judgment
Cele J
Introduction
[1] The arbitration award dated 3 July
2009 issued by the second respondent as an arbitrator of the first
respondent in this matter
is sought to be reviewed and set aside in
terms of section 158(1) (g) of the Act
1
.
The applicants simultaneously sought condonation for the late filing
of the review application. At the hearing of the matter,
applicants
were granted condonation. The third respondent opposed this
application in its capacity as the employer of the second
applicant
who is assisted by the first applicant as a registered trade union
which she is a member of.
Background facts
[2] The Second Applicant, Ms Gouvea is
employed by the third respondent in the position of a Principle Data
Capture at the Deeds
Offices in Pietermaritzburg. She commenced her
employment with the third respondent since June 1991.
[3] As from 7 November 2007 to
February 2009 Ms Gouvea was continuously ill and she consulted a
medical practitioner who booked
her off-sick. The third respondent
approved her sick leave for 7 November 2007 to 3 December 2007 with
no hassle. Approval of the
leave period of 4 December 2007 to 30 June
2008 was granted only after Ms Gouvea had successfully lodged a
grievance. The third
respondent declined to approve her leave of
absence for the rest of the period from 1 July 2008 to February 2009,
notwithstanding
Ms Gouvea’s application for incapacity. She
then lodged a grievance.
[4] On 24 June 2008 Ms Gouvea received
a letter from the third respondent instructing her to report for duty
not later than 1 July
2008, failing which her absence from duty would
be treated as leave without pay. She was also informed that her
grievance would
be referred to a state agency called Soma, invested
with powers to make final recommendation on incapacity. A report was
issued
by the Health Risk Manager declining the application for long
periodical temporary incapacity leave for 4 December 2007 to 30 June
2008. An unfair labour practice dispute arose between the parties
which Ms Gouvea referred to conciliation and later to arbitration.
The second respondent was appointed to arbitrate it. Parties agreed
that the facts were essentially common cause between them and
that
the second respondent had to interpret the applicable collective
agreement.
[5] The crisp issue before the second
respondent was whether in terms of an existing collective agreement
on this issue Ms Gouvea
was entitle to the temporary incapacity leave
(TIL) and further whether the third respondent could recover Ms
Gouvea’s salary
for the period up to June 2008 and not to
authorise payment for July 2008 to February 2009.
[6] It was the third respondent’s
contention at the arbitration that Ms Gouvea would not qualify on the
recommendation of
the Health Risk Managers appointed by the third
respondent to investigate such application and accordingly all the
consequences
that followed thereafter were justified by their advice.
It was Ms Gouvea’s submission that she qualified in terms of
the
collective agreements as her condition was supported by medical
advice.
[7] In terms of Resolution 7 of 2000
an employee has the right to apply for temporary incapacity leave in
circumstances where the
prescribed sick leave cycle has been
exhausted. The pre-requisites to accessing the consideration of the
temporary incapacity leave
are:
1. the head of department must within
30 days of receiving the completed application either grant approval
or refuse temporary incapacity
leave.
2. Clause 7.5 of Resolution 7 of 2000
creates a right for employees whose normal sick leave credits in a
cycle have been exhausted
to be granted additional TIL on full pay
provided that :
the employee informs the supervisor
that he/she is ill;
a registered medical practitioner has
duly certified the condition in advise;
the employer shall investigate the
incapacity in terms of Schedule 8, clause 10(1) within 30 working
days.
[8] The second respondent found that
Ms Gouvea was not entitled to be granted temporary incapacity leave
longer than 30 working
days. The third respondent was found to be
entitled to recover from her the salary paid to her for the period
December 2007 to
June 2008 and that she was not entitled to further
remuneration
for the period
July 2008 to February 2009. She then initiated the present review
application.
Chief findings of the second
respondent
[9] The second respondent said that:
“
In
my view it is clear that both the Applicant and the Third Respondent
have, with respect, misunderstood the concept of TIL and
are
continuing to consistently and incorrectly interpreting and applying
the provisions of Resolution 7 of 2000
”
[10] He noted that clause 7.5.1(a) of
Resolution 7 of 2000 made provision for a step by step scenario in
which the following should
apply:
An employee is ill and has exhausted
all her nominal sick leave;
She applies for Temporary Incapacity
Leave;
In order to do this, she reports to
her supervisor, and secondly, she gets a letter from her doctor
stating that she is temporarily
disabled;
Her application is assessed by
someone delegated by the Health Risk Manager, and if successful, she
is then placed on Temporary
Incapacity Leave for 29 days;
During a 30 days leave whilst she is
on TIL, the employer must carry out the investigation referred to in
Clause 10.1 of the Code
i.e. must see if her workplace conditions
can be changed or adapted etc.
Thereafter, the employer may, within
its discretion, decide to extend TIL while efforts are being made to
adapt or change the
person’s working conditions, or the
employer may place the person on vacation leave, or unpaid leave, or
it may even terminate
the employee’s services as a result of
incapacity (as per clause 10 and 11 of the Code of Good Practice);
If the disability continues, then the
employer must take steps in terms of section 7.5.2 of the
Resolution, to medically board
the employee”.
Grounds for review
[11] Ms Gouvea focused her review
application on the fact that the second respondent was requested on
the pre-arbitration minute
to overturn the decision not to grant her
temporary incapacity leave for the relevant period. The essence of
the second respondent’s
finding was that on a correct legal
interpretation of Clause 7 of Resolution 7 of 2000 there was no
reason for Ms Gouvea to be
granted temporary incapacity leave. The
second respondent in making this decision has focused his attention
on the application
of Clause 17.7 of the third respondent’s
Human Resource Management Policy (which is not a collective
agreement) and not on
Resolution 7 of 2000. This is a fundamental
error which renders the award reviewable.
[12] The second respondent was said to
have inextricably interpreted to provide for a capping of temporary
capacity leave of 30
days in circumstances where:
there is nothing in Clause 7 to
justify such a finding;
this flies in the face of the
evidence that the third respondent distinguishes between short
incapacity leave (29 days or less)
and long incapacity leave (more
than 30 days) and that the leave for which Ms Gouvea had applied was
long incapacity leave;
accordingly, it renders the second
respondent’s finding unreasonable and illogical.
[13] Ms Gouvea said that the second
respondent applied Clause 17.7 of the third respondent’s Human
Resource Management Policy
as opposed to interpreting Resolution 7 of
2000 as required.
Grounds in opposition to the review
application
[14]
T
he
third respondent submitted that it was clear that clauses 7.5.1 (a)
and (b) ought to be read together, and a proper reading thereof
did
not give an employee the
right
to TIL. In the premises:
The second respondent did not hand
down an award in conflict with the behests of the Act;
The award is not unreasonable;
The second respondent has properly
applied his mind and has not misconducted himself;
The second respondent has not
committed a gross irregularity and has not exceeded his powers by
acting unreasonably or unjustifiably
as alleged;
The second respondent has given the
wording of the agreement and in particular clause 7.5 its clear and
unambiguous meaning in
the award;
The second respondent has correctly
interpreted the Collective Agreement.
The second respondent has not failed
to make a rational connection between the material available before
him and the conclusions
that he reached. Based upon the facts he
came to a finding that a reasonable decision maker could have.
There exists no basis for the second
respondent’s award to be reviewed and set aside and
substituted with an order granting
Ms Gouvea TIL, alternatively that
the second respondent exceeded his jurisdiction in dealing with the
dispute.
The medical evidence of Ms Gouvea
alone was not the decisive factor in her application for TIL. That
evidence was assessed and
considered by the third respondent’s
Health Risk Managers and the application was declined for reasons
set out in the SOMA
report which form a part of the record.
The third respondent has not acted
outside of the ambit of the collective agreements, and the second
respondent’s finding
is justified in terms thereof. On the
foregoing basis the application must be dismissed with costs.
Analysis
[15] It remained common cause between
the parties that the issue for the decision of the second respondent
fell within the purview
of section 186 (2) of the Act in that it
revolved around an alleged unfair act which arose between the third
respondent as the
employer and the second applicant as the employee,
involving an alleged unfair conduct by the third respondent relating
to the
provision of benefits to the second applicant.
[16] Clause 7.5 of the resolution 7 of
2000 to the extent relevant in these proceedings reads:
“
DISABILITY
MANAGEMENT LEAVE
7.5.1
Temporary Incapacity
Leave
(a) An employee whose normal
seek leave credits in a circle 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) his or her supervisor is
informed that the employee is ill and
(ii) a relevant registered
medical practitioner has duly certified such a condition in advance
as temporary disability.
(b) 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 1995
.
(c) ........”
[17]
The
review application turns on whether the second respondent applied his
mind appropriately in her interpretation of
clause
7.5 of the resolution 7 of 2000. Interpretation is the 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. Whatever
the
nature of the document, consideration must 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. Where more than one meaning is possible, each
possibility must be weighed in the light
of all these factors. The
process is objective and not subjective. A sensible meaning is to be
preferred to one that leads to insensible
or unbusinesslike results
or undermines the apparent purpose of the document. Judges must be
alert to, and guard against, the temptation
to substitute what they
regard as reasonable, sensible or businesslike for the words actually
used. To do so in regard to a statute
or statutory instrument is to
cross the divide between interpretation and legislation. In a
contractual context, it is to make
a contract for the parties other
than the one that they in fact made
2
.
[18] The applicants accused the second
respondent of making his decision by focusing his attention on the
application of Clause
17.7 of the third respondent’s Human
Resource Management Policy and not on Resolution 7 of 2000. In
determining the apparent
purpose to which Clause 7.5 of the
resolution it is directed and the material known to those who are
responsible for its production,
the second respondent could
legitimately allow himself to be guided by relevant material outside
of the collective agreement without
infringing the rules of
interpretation. Therefore the mere reference to clause 17.7 could not
found a basis for review. His interpretation
of the collective
agreement, seen in its entirety, must be examined.
[19] The parties raised no factual
issues on Ms Gouvea having complied with the factual requirements as
are envisaged in clause
7.5.1. (a) (i) and (ii). It shall therefore
be presumed, without decide that she met those requirements. The
third respondent exercised
discretion, as it was entitled, to grant
her sick leave on full pay from 7 November 2007 to 3 December 2007.
She applied for a
further sick leave from 4 December 2007 to 30 June
2008, which leave was initially refused but upon her lodging a
grievance, the
third respondent exercised its discretion in favour of
granting her that sick leave. From 7 November 2007 to 7 December 2007
the
third respondent was within the 30 day investigative period as
envisaged in clause 7.5.1 (b). The period 7 December 2007 to 30 June
2008 could justifiably be given to her as a further sick leave if the
third respondent was acting within the clear terms of item
10 (1) of
Schedule 8 of the Act. Once all investigations pertaining to the
temporary disability leave are finalised and a decision
is taken by
the third respondent and communicated to Ms Gouvea, then and only is
the moment reached when she could be called back
to work, should the
decision go against her.
[20] The limited facts of this matter
suggest that on 24 June 2008 the third respondent had finalised all
investigations and had
made its decision which it communicated to Ms
Gouvea by a letter it issued to her on that day. She had to report
back at work on
1 July 2008. From the given facts, as I understand
them, a report was issued by the Health Risk Manager declining the
application
for a periodical temporary incapacity leave for 4
December 2007 to 30 June 2008. This report sought to have a
retrospective effect.
The consequence of a retrospective effect is
that it amounts to an unreasonable and arbitrary exercise of a
discretion with unfair
consequences to an employee. Nowhere in clause
7.5 of Resolution 7 of 2000, is there a suggestion that the employer
may not grant
further sick leave after the lapse a 30 day period. On
the contrary, as investigations shall be in accordance with item 10
(1)
of Schedule 8 of the Act, a further sick leave period may be
granted to the employee.
[21] In my view, the second respondent
accorded to clause 7.5 of Resolution 7 of 2000 a meaning that did not
belong to it, when
he provided for a capping of temporary capacity
leave to 30 days. The result is that he reached a conclusion which a
reasonable
decision maker could not reach, for the temporary
incapacity leave beyond 30 days that is 7 December 2007 to 30 June
2008.
[22] In the circumstances the
following order shall be issued:
The arbitration award dated 3 July
2009 issued by the second respondent as an arbitrator of the first
respondent in this matter
is reviewed and corrected.
The second applicant is entitled to
temporary incapacity leave for the period December 2007 to June
2008;
The second applicant is not entitled
to temporary incapacity leave for the period 1 July 2008 to February
2009.
No costs order is made.
__________
Cele J.
Judge of the Labour Court.
APPEARANCES:
For the applicants: Mr B
McGregor of MacGregor Erasmus Attorneys, Durban
For the third respondent: Adv S
K Dayal instructed by the State Attorney, Durban
1
The
Labour Relations Act Number
66 of 1995.
2
For
this approach see Natal Joint Municipal Pension Fund v Endumeni
Municipality (920/2010)
[2012] ZASCA 13
(15 March 2012).