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[2016] ZALCD 25
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POPCRU and Another v Department of Correctional Services and Another (D642/15) [2016] ZALCD 25; (2017) 38 ILJ 964 (LC) (23 November 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: D642/15
In
the matter between:
POPCRU
First Applicant
LINDANI
EARL EMMANUEL
MBONGWA
Second Applicant
and
THE
DEPARTMENT OF CORRECTIONAL SERVICES
First Respondent
THE
MINISTER OF CORRECTIONAL SERVICES
Second Respondent
Heard:
18 June 2016
Delivered:
23 November 2016
Summary:
PILIR - employer’s failure to respond to application for
temporary incapacity leave within
30 working days does not translate
into entitlement to such leave
JUDGMENT
WHITCHER
J
[1] Clause 3.1 of the
first respondent’s Policy and Procedure on Incapacity Leave and
Ill-Health Retirement Policy (PILIR)
provides that if an employee has
exhausted his or her normal sick leave of 36 working days in a sick
leave cycle of 3 years, the
respondent, may at its discretion, grant
temporary incapacity leave (TIL). The PILIR policy of 2005 is
additionally a ministerial
determination determined in terms of
section 3 (3) (c) of the Public Service Act of 1994. It amplifies a
collective agreement,
Resolution 7 of 2000, concluded in the Public
Service Coordinating Bargaining Council.
[2]
Clause 7.1.1 of PILIR provides that incapacity leave is granted
conditionally at the employer’s discretion.
[3] Clause 7.3.3 provides
that the employer must within 5 working days from receipt of the
written application for incapacity leave
conditionally
grant a
maximum of 30 consecutive working days temporary incapacity leave
with full pay subject to the outcome of its investigation.
[4] Clause 7.3.5 provides
that the employer must within
30 working days
after receipt of
the application approve or refuse temporary incapacity leave granted
conditionally on conditions that the employer
may determine.
[5] Clause 7.3.5 provides
further that if the employer (i) approves the temporary incapacity
leave granted conditionally,
such leave must be converted into
temporary incapacity leave;
or if the employer (ii) refuses the
temporary incapacity leave granted conditionally, the employer must
notify the employee in
writing of the refusal, the reasons thereof,
that the employee has the right to lodge a grievance against such
refusal.
[6] The first page of the
application forms contains a number of warning notes to the
applicant.
[7] Note 4 warns that the
application for temporary incapacity leave is subject to an
investigation
and in light hereof, the employer shall grant
temporary incapacity leave
conditionally
for a maximum period
of 30 working days with full pay subject to the outcome of the
investigation.
[8] Note 5 further
cautions the applicant that if the application is declined based upon
the outcome of the investigation the period
of temporary incapacity
leave shall be converted to either annual leave or unpaid leave.
[9] Section 38 (1) of the
Public Service Act, 1994 provides that if a state employee has, in
respect of his salary, including any
portion of any allowance or
other remuneration or any other benefit calculated on his salary or
awarded to him by reason of his
salary, been overpaid or received any
such other benefit not due to him, an amount equal to the amount of
the overpayment shall
be recovered from him by way of the deduction
from his salary of such instalments as the head of department, with
the approval
of the Treasury, may determine.
[10] The applicant is
employed by the respondent as a Principal Educationist at its
Westville Correctional Facility. He booked off
on sick leave from 8
March 2010 citing “depression” as the reason and a salary
adjustment dispute as the cause of the
depression. In mid-June 2010,
after he had exhausted his sick leave of 36 days, he filed an
application for temporary incapacity
leave; remarkably for 7 months,
effective from May 2010.
[11] The applicant
received no response, until 2014. In a letter dated 14 April 2014,
the respondent informed the applicant that
his application for
temporary incapacity leave had been only partially approved by the
Health Risk Manager. In summary, only 48
out of the 155 days applied
for had been approved. The full report from the assessors, including
their reasons for their recommendations,
was attached to the letter.
[12] Three months later,
the respondent sent the applicant a letter notifying him that he owed
an amount of R71 498.46 to the respondent
because he did not have
sufficient leave credits to cover the periods of leave which had not
been approved, and, accordingly, he
had been on leave without pay for
the periods not approved. He was advised that monthly payments of R5
958.05 would be deducted
from his salary. Three months later, the
respondent commenced these monthly deductions, but reduced them to
R500 per month pending
the outcome of this case.
The applicant’s
submissions
[13] The applicant
contends that the deductions are unlawful because the respondent
failed to make a decision and notify him thereof
within the time
periods prescribed in the PILIR (the 30 working day period referred
to in clause 7.3.5) and because the respondent
failed to afford him a
hearing prior to taking the decision to effect the deductions.
[14] At the hearing of
this matter (not in his founding affidavit), it was contended on
behalf of the applicant that when he did
not hear from the respondent
after the 30 working day period referred to in clause 7.3.5 he
reasonably assumed that his leave had
been granted.
[15] It was further
contended at the hearing that if the respondent had complied with the
30 day period, and thus advised the applicant
timeously that his
leave had only been partially granted, he would have reconsidered his
position, which may have included returning
to work to avert
financial prejudice. It was contended that the policy implicitly
provides the applicant with this right and the
respondent’s
failure to afford him same caused the financial loss.
[16] Lastly, the
applicant contended, section 38 of the Public Service Act, 1994 does
not have application to his case because the
payments made to him do
not constitute “overpayments” of remuneration arising
from “an error” in calculating
his remuneration.
The respondent’s
submissions
[17] It is evident from
the respondent’s opposing affidavits that the processing of
incapacity leave applications is cumbersome
and time consuming. The
application proceeds through various departments before it ends up at
Proactive Health Solutions (PHS),
the service provider tasked to
assess all applications for temporary incapacity leave and to make
recommendations thereon. The
recommendation from the PHS also
proceeds through various departments for approval before the employee
is notified of the final
outcome.
[18] According to the
respondent, it only received the recommendations from PHS in April
2013. Thereafter the recommendations were
sent for approval to
another department, the approval was granted in May 2013 and the
applicant was informed of the final outcome
in April 2014.
[19] The respondent
submitted that the policy and guidelines on temporary incapacity
leave clearly warns applicants that temporary
incapacity leave is
only
conditionally
granted subject to the proviso that where
leave is not approved and the employee has exhausted all sick and
annual leave, then the
sick leave taken will be regarded as leave
without pay. The policy clears indicates that the employee assumes a
risk: a risk that
temporary incapacity leave may not be granted, and,
if so, any leave taken will be regarded as either annual leave or
unpaid leave.
[20] The respondent
pointed out that nowhere in his founding affidavit did the applicant
allege that he assumed the leave had been
granted and that he would
have reconsidered his position if he had been timeously advised of
the final outcome. It is obviously
an afterthought conceived by his
counsel and is thus irrelevant and inadmissible.
[21]
The policy in clause 7.3 permitted the applicant to lodge a grievance
against the outcome of his leave application, but he
had failed to do
so.
[22]
Section 38 of the PSA applies to the applicant’s case in that
he received remuneration
not
due to him
-
he
was paid while on leave without pay.
[23]
Finally, to allow the applicant to retain the money will amount to
irregular and wasteful expenditure, which is contrary to
the
provisions of the Public Finance Management Act, 1999 (PAAM) as the
applicant did not render any services during the said period.
Analysis
and findings
[24]
I am aware of the judgment of my learned brother, Cele, J in
Public
Service Association of South Africa and Another v PSCBC, Gouvea and
Others
[1]
.
In this he finds that where an application for temporary incapacity
leave is declined outside the 30 day investigation period,
any
deduction from an employee’s salary for the period (outside the
30 day period) that he or she was awaiting a decision
from the
employer would offend the prohibition against retrospectivity. Cele,
J states, “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”.
This has been taken
to mean that “employees cannot be subjected to leave without
pay/monthly deductions from their salary
(in order to recover salary
paid, where an application for TIL/IHR is declined for a period they
have been off work sick) or stoppage
of salary unless the application
is declined within 30 days or unless they have been given a date to
return for work and have failed
to do so.”
[2]
[25]
The decision in
Gouvea
flowed from an analysis of clause 7.5.1 (b) of PSCBC Resolution 7 of
2000, which is identical in operation to clause 7.3.5 in PILIR.
PILIR, a ministerial determination, indeed amplifies the earlier
PSCBC Resolution 7 of 2000.
[26]
In my view this interpretation of PILIR is not sustainable in light
of the fact that an employee applying for temporary incapacity
leave
has not been granted it yet. A late determination of an employee’s
application for additional leave, as lamentable
as this is, and a
subsequent instruction to pay back money to which the employee was
not entitled does not produce a decision that
retrospectively
deprives the employee of a right to the payment in question. An
employee seeking additional sick-leave in terms
of PILIR has
conditionally been paid a salary while their application for
additional leave is considered. This consideration should
be over
within 30 days. However, if the period the employer takes to decide
the application exceeds the 30 days set out in PILIR,
I do not see
how the conditionality of payments to an employee, subject to a
medical assessment, hardens into an entitlement after
the 30 day
investigation period lapses. Nor, in light of clause 7.2.2.2, 7.3.3.2
and note 4 of PILIR, should a reasonable employee
applying
for additional leave assume that, should a medical assessment go
against them, even if delayed, they are entitled to be paid for
their
absence from work. It seems to me that, if the underlying medical
condition which prompted an employee to seek additional
sick leave,
is assessed not to have warranted such leave, this fact must
determine what happens to any payments they received while
applying
and not the employer’s delay in attending to the application.
[27]
I also agree with the respondent’s submission that section 38
of the PSA applies to the applicant’s case in that
he received
remuneration
not
due to him.
Order
[28]
The application is dismissed with no order as to costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicants: A P Shangase & Associates
For
the respondents: Adv D N Govender, instructed by State Attorney,
KZN
[1]
[2013] ZALCD 3 (at para
20), unreported
[2]
Bezuidenhout
/ Department of Health: Eastern Cape
(2014)
23 PSCBC 4.2.2, unreported.