Ndlovu v Minister in Presidency Responsible for Women, Children and Persons with Disabilities and Another (JR 1525/20) [2020] ZALCJHB 229 (11 November 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 1525/20

In the matter between:

DINKY THAMI DINGANI NDLOVU

Applicant

and

MINISTER IN THE PRESIDENCY RESPONSIBLE FOR

WOMEN, CHILDREN AND PERSONS WITH DISABILITIES First Respondent

DIRECTOR-GENERAL: DEPARTMENT OF WOMEN,

CHILDREN AND PERSONS WITH DISABILITIES Second Respondent

Heard:

28 October 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be 16h00 on 11 November 2020

JUDGMENT

TLHOTLHALEMAJE, J

[1] The applicant seeks an order reviewing and setting aside a decision by the respondents to decline his application for temporary incapacity leave. He further seeks an order that the decision regarding his application be referred back to the respondents, and for the latter to be ordered to treat his application in accordance with all relevant provisions of the Policy and Procedure on Incapacity Leave and Ill-Health Retirement dated 1 April 2009 (referred to as PILIR)[1]

[2] The applicant is employed as a Director: Strategic Planning, Monitoring and Evaluation in the Department of the Minister in the Presidency Responsible for Women, Youth and Persons with Disabilities. The Second Respondent (Director-General) and the deponent to the answering affidavit is the Director-General in the Department.

[3] The background to this application, and to the extent that it is not seriously disputed is summarised as follows:

3.1 The applicant alleges that he has a history of medical conditions, and that on 7 September 2020 he was admitted to hospital until 25 September 2020 on account of his ill-health. His Psychiatrist Specialist had declared him unfit to resume his duties for the period between 7 September 2020 until 31 December 2020.

3.2 At the time that the applicant was booked off, he had already exhausted his normal allocated leave and sick days.

3.3 The respondents contend that the applicant’s previous similar applications for the period 29 October 2019; 02 September 2019; and 13 - 14 August 2019 were declined. It does not however appear to be in dispute that similar applications made for the period 13 October 2016 until 31 January 2017, and 15 October 2018 until 28 February 2019 were approved.

3.4 On 7 September 2020, the applicant’s spouse advised his supervisor that he (applicant) had been admitted to hospital. On 9 September 2020, a copy of a medical certificate confirming his hospitalisation was submitted. It was the same copy declaring that the applicant would be unfit for duty for the period 7 September 2020 until 31 December 2020.

3.5 The applicant’s contention was that the submission of the copy of his medical certificate together with other documentation amounted to a formal application for temporary incapacity leave.

3.6 The Director-General had 14 September 2020, responded to the applicant’s ‘application’ based on the documents submitted as followed:

“…Please note that in June 2020 the department sought advice from the Department of Public Service and Administration (DPSA) and SOMA about your medical certificate dated 06 June 2020 as issued by Dr Manesh Mohanial. DPSA advised that the Department should inform you that this medical certificate cannot be accepted as it does not adhere to the requirements of paragraph 17.3 of the Determination of Leave of Absence in the Public Service. According to DPSA if the employee’s absence exceeds his/her normal 36 days the employee must also be advised that he/she may apply for incapacity leave and as such submit the required application form(s) within the stipulated timeframes as set out in Policy and Procedure on Incapacity Leave and Ill-Health Retirement. Your application has not been received in this regard.

In accordance with DPSA’s advice the Department has a discretion to approve or disapprove the application for sick leave. In view of the above, I have therefore after careful consideration decided to decline the recommendation for temporal incapacity leave. The period of your absence with effect from 07 September 2020 will therefore be treated as leave without pay and your salary will eventually be frozen with immediate effect. Note that your rights are reserved should you wish to pursue the matter further.

…”

3.7 On 21 September 2020, NEHAWU had on behalf of the applicant, sought to persuade the Director-General not to ‘freeze’ the applicant’s salary on the basis that he was unfit to resume his duties. NEHAWU further suggested that the applicant’s normal annual leave of absence be utilised in lieu of unpaid leave being implemented.

3.8 In a response to NEHAWU on 22 September 2020, the Director-General indicated that the applicant had not complied with the provisions of the leave policy and further that the applicant had consistently been absent from his duties without permission and/or approval from his supervisor. The Director-General further stated that the applicant’s ‘application’ for temporary incapacity leave was not in compliance with Directive 15.6 of the Determination and Directive on Leave of Absence in the Public Service, as it was not submitted within five days from the first day of his absence and that the applicant’s absence was considered as leave without pay with effect from 7 September 2020

3.9 On 25 September 2020, the applicant had submitted his application for temporal incapacity in the prescribed form, attaching a copy of his medical certificate issued on 7 September 2020 and various medical reports in support of his application.

[4] The respondents in opposing the application before the Court contended that there was no ‘decision’ before the Court to be reviewed and set aside, as the applicant’s application for leave of absence, which was submitted on 25 September 2020 has not even been considered, and therefore the application before the Court was manifestly premature.

[5] It was further submitted on behalf of the respondents that the applicant’s review application was launched within 14 days from the date of his submission of his application for temporal incapacity, in circumstance where in terms of the policies and procedures as prescribed in PILIR, the a period of 30 business days within which to consider the application and make a decision had not even expired.

[6] Other than the fact that the respondents had not as yet made a decision, it was submitted that the applicant had a habit of being absent from duty without authorisation, and was on 16 January 2020 issued with a written warning for such conduct. Furthermore, it was submitted that the applicant faced various forms of charges of misconduct, with an internal disciplinary enquiry having been scheduled for 12 June 2020[2], and that enquiry having been postponed at the request of the applicant, after he had again submitted a copy of a medical certificate, declaring him to be unfit for a period of approximately six months.

[7] This application was brought before the Court in terms of the provisions of section 158 (1)(h) of the Labour Relations Act (LRA),[3] which provides that the Labour Court may review any decision [my emphasis] taken or any act performed by the State in its capacity as employer, and on such grounds as are permissible in law. It therefore follows that before there can be reliance on these provisions, a decision sought to be reviewed must have been by the State. A decision given its literal meaning implies, an outcome, a conclusion, or resolution reached.

[8] Two principal issues arise in this application. The first is whether in fact the respondents had taken a decision in regards to the applicant’s application for temporary incapacity leave for the purposes of jurisdiction under section 158(1)(h) of the LRA, and the second issue relates to whether this application deserves the urgent attention of this Court. It needs to be stated without hesitation that the applicant’s application on both counts ought to fail.

[9] In terms of paragraph 7.1.2 of the PILIR, an employee who has exhausted his/her normal sick leave, and who according to the treating medical practitioner requires to be absent from work due to temporary incapacity, may apply for temporary incapacity leave with full pay. Any application in that regard must be made in accordance with the provisions of the PILIR, and by submission of certain prescribed application forms, which should be accompanied by a variety of medical records. Other than those requirements, an employee making the application is required to undergo further medical examinations in terms of the assessment process described in the PILIR. Of importance is that in accordance with paragraph 7.1.8 of the PILIR, an employee is required to submit an application for temporary incapacity leave personally or through a relative, fellow employee or friend, within 5 working days after the first day of absence.

[10] Two consequences arise if the employee fails to submit an application within the period indicated in paragraph 7.1.8. The first is that the employee’s manager/supervisor must immediately notify that employee that if the application is not received within two working days, the sick leave will be deemed to be without pay. The second is that the failure must be viewed in serious light and disciplinary action taken.

[11] In this case, and from the common cause facts, the applicant had on 9 September 2020, merely submitted a copy of a medical certificate from a Dr Manesh Mohanlal (Specialist Psychiatrist), declaring him unfit for duty for the period 7 September 2020 to 31 December 2020, and for him to report for duty on or about 2 January 2020.

[12] Having received those documents as they were, clearly the respondents were correct in pointing out that there was no valid application before them, as the alleged application was not in compliance with the prescripts outlined in the PILIR. A mere submission of a copy of a medical certificate in which it is recommended by the employee’s personal medical practitioner that she/he should be placed on temporary incapacity leave cannot be equated to proper application in terms of the provisions of PILIR, from which a final assessment of the employee’s condition can be made. The mere fact that it was indicated to the applicant that it was decided to decline the recommendation for temporal incapacity leave based on the documents and the recommendations of his medical

practitioner, does not imply that this was a decision as contemplated in paragraph 7.2.10 of the PILIR for the purposes of jurisdiction

under the provisions of section 158(1)(h) of the LRA. In a nutshell, there was no proper application for temporary incapacity leave from which it can be said that a decision was taken.

[13] A further application was made by the applicant on 25 September 2020, and in accordance with the provisions of paragraph 7.3.5.1 (3) of the PILIR, the employer has 30 days within which to approve or refuse temporary incapacity leave. Where an employee was not satisfied with the decision, he/she may lodge a grievance under the provisions of paragraph 7.3.5.1 (i) of PILIR.

[14] In this case, and as correctly pointed out on behalf of the respondents, this application was launched some 14 days after the applicant’s formal application for temporary incapacity leave was made. It therefore follows that the application before the Court is premature.

[15] It is trite that urgent relief will not be granted in circumstances where the applicant can obtain substantive relief in due course, and further where it is apparent that the urgency claimed is self-created[4]. To the extent that this application is premature, it follows that the urgency claimed is self-created. Further to the extent that the respondents have 30 days within which to make a decision on the applicant’s application for temporary incapacity leave, and if still aggrieved, the applicant is entitled to lodge a grievance, or when all else fails, he may approach a relevant bargaining council for relief, it follows that he has alternative remedies, and can also obtain substantive relief in due course.

[16] In conclusion, I am satisfied that there is no legal basis set out for the urgent relief sought, nor has the applicant satisfied the requirements for urgency. This application was clearly premature and ill-conceived, and in my view, the requirements of law and fairness dictate that the applicant be burdened with its costs.

[17] Accordingly, the following order is made;

Order:

1. The applicant’s application is dismissed with costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

REPRESENTATION:

For the Applicant: Adv. H. Bucksteg, instructed by Carel J Schoeman Incorporated

For the 1st and 2nd Respondents: Adv. T. Mphahlane, instructed by State Attorney: Pretoria

[1] Determined in terms of Section 3(2) of the Public Service Act, 1994.

[2] NOTICE OF DISCIPLINARY HEARING … The hearing will be held on 9H00 on 12 June 2020 at 2nd floor small boardroom Department of Women, Youth and Persons with Disabilities, 36 Hamilton Street, Pretoria. Alleged misconduct The alleged misconduct and the available evidence is that; you are guilty of misconduct in terms of Annexure A of the code: … Charge 1 You prejudiced the administration, discipline or efficiency of the department, office or institution of the State, in that, you constantly fail to comply with the Leave Management Policy Charge 2 You perform poorly or inadequately for reasons other than incapacity in that, on 3 February 2020 you were requested but failed to provide evidence files for Q1, Q2 and Q3 of 2019/2020 for AGSA to determine the achievement of the departmental quarterly performance indicators. Charge 3 You failed to carry out a lawful order or routine instruction without just or reasonable cause. In that, for the period 2018/2019 performance cycle you refused and failed to sign a performance agreement with your supervisor and thereby contravening the Public Service Regulation 72(1), Chapter 4 of the SMS Handbook and the Departmental PMDS policy Charge 4 You failed to carry out lawful instructions and functions in the implementation of the DWYPD Planning Performance Monitoring and Reporting policy.

[2] NOTICE OF DISCIPLINARY HEARING

…

The hearing will be held on 9H00 on 12 June 2020 at 2nd floor small boardroom Department of Women, Youth and Persons with Disabilities, 36 Hamilton Street, Pretoria.

Alleged misconduct

The alleged misconduct and the available evidence is that; you are guilty of misconduct in terms of Annexure A of the code:

Charge 1

You prejudiced the administration, discipline or efficiency of the department, office or institution of the State, in that, you constantly fail to comply with the Leave Management Policy

Charge 2

You perform poorly or inadequately for reasons other than incapacity in that, on 3 February 2020 you were requested but failed to provide evidence files for Q1, Q2 and Q3 of 2019/2020 for AGSA to determine the achievement of the departmental quarterly performance indicators.

Charge 3

You failed to carry out a lawful order or routine instruction without just or reasonable cause. In that, for the period 2018/2019 performance cycle you refused and failed to sign a performance agreement with your supervisor and thereby contravening the Public Service Regulation 72(1), Chapter 4 of the SMS Handbook and the Departmental PMDS policy

Charge 4

You failed to carry out lawful instructions and functions in the implementation of the DWYPD Planning Performance Monitoring and Reporting policy.

[3] Act 66 of 1995, as amended

[4] See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; See also Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order v Committee of the Church Summit, 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32, where it was held; ‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’

[4] See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; See also Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order v Committee of the Church Summit, 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32, where it was held;

‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’