Panellist: John Cheere Robertson Case No.: PSCB98-12/13 Date of Award: 09 November In the ARBITRATION between:

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1 ARBITRATION AWARD Panellist: John Cheere Robertson Case No.: PSCB98-12/13 Date of Award: 09 November 2012 In the ARBITRATION between: SAPU obo JJ Bezuidenhout (Union / Employee) and South African Police Service (Employer) Union/Employee s representative: Union/Employee s address: Telephone: Telefax: Mr L Naude SAPU 38 Pickering Street Newton Park, Port Elizabeth Employer s representative: Employer s address: Telephone: Telefax: Brigadier P De Kock / Colonel JLJ Van Rensburg Private Bag X 91 Pretoria Page 1

2 DETAILS OF HEARING AND REPRESENTATION 1 This matter was scheduled for arbitration on 12 October 2012 at the SAPU offices in Port Elizabeth. Mr L Naude of SAPU represented JJ Bezuidenhout (employee). Col. JLJ Van Rensburg although not in attendance represented the South African Police Service (SAPS) the employer. The parties agreed on a written statement of case, see below, and submitted written closing arguments by 26 October ISSUE TO BE DECIDED 2 The issue to be determined is whether the employer complied with Resolution 7/2000 relative to the employee s entitlement or not to temporary incapacity leave (TIL). BACKGROUND TO THE ISSUE 3 The parties agreed on a statement of case as follows: 3.1 The employee, a Warrant Officer, Artisan Foreman, is stationed at the Auxiliary Garage Grahamstown. 3.2 During 2010 the employee suffered a brain haemorrhage (subarachnoid haemorrhage). Resultant thereon he applied for TIL for the period 21 June July 2010 (the first period) which was approved. He returned to work on 31 July and 1 August 2010 whereafter he was off duty (sick) for a further period namely 02 August September 2010 (the second period) and his subsequent application for TIL for this period was not approved. 3.3 The application for TIL for the period 02 August 2010 to 02 September 2010 which was not approved, was the subject of a number of decisions by the employer on various dates which are apparent from the bundle of papers (Exh A1-A47). 3.4 The employer created the debt (for the recovery of an amount equivalent to the quantum of the employee s salary for 32 days which had already been paid to him in respect of the period 02 August 2010 to 02 September 2010) on PERSAL on 24 October 2011 (A42) resulting in monthly deductions from the employee s salary commencing end of March SURVEY OF EVIDENCE AND ARGUMENT The employee s submissions 4 The employee party argued to the following effect. The Health Risk Manager (HRM) indicates in its report recommending the first period of TIL that the recommended period for recovery from this type of condition is 130 days. Taking into account the employees 36 days sick leave used for his condition together with the two further periods he was off sick from this condition (one of which was granted as TIL) there were still 41 days according to the Medical Disability Advisor (MDA) and accordingly the period requested for the second TIL application should be seen as appropriate in relation to the condition. Page 2 of 8

3 5 That it is apparent from the HRM s report in respect of the second period that it was based only on the report of Dr Marx, whereas it is clear that all the relevant reports were submitted to the employer. Further the employee s appeal was declined without it being considered by HRM. 6 In the circumstances the employee argued that the decision to deny TIL for the second period was based on the HRM s recommendation which in turn was based on incomplete information, but which was available to the employer, and that when it was again forwarded to the employer by way of appeal it was not placed before the HRM and the employer made the decision on its own. In addition the employee takes issue with the fact the signatures appended to the HRM report for the second period do not indicate their status and do not reflect any medical qualifications, and also various anomalies contained in the HRM report not recommending TIL for the second period. 7 As relief, the employee sought that he be granted TIL in respect of the second period. The employer s submissions 8 The employer party argued to the effect that the employer was required to exercise its discretion in determining whether or not to grant TIL. The Health Risk Manager (HRM), an independent health risk assessor appointed by the employer, had properly considered the employee s claim for TIL, for the second period, in recommending that TIL not be approved. In the instant case certificates were not signed, there was no apparent cause for the employee to be off sick and the employer had applied its mind properly in its decision not to approve the application for TIL 9 In order to establish a claim to TIL the employee would have to prove that indeed they qualified for TIL, which in the employer s view had not been done. In the circumstances the employer argued the status quo must remain. ANALYSIS OF EVIDENCE AND ARGUMENT 10 PSCBC Resolution 7 of 2000, par reads as follows: (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) her or his supervisor is informed that the employee is ill, and ii) a relevant registered medical and/or dental practitioner has duly certified such a condition in advance as temporary disability except where conditions do not allow. 11 In terms of paragraph (b) of R 7/2000: 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 1995 Page 3 of 8

4 12 Para 7.5.1(a) of R 7/2000 (above) provides that an employee may be granted sick leave on full pay, in this case TIL. The word may signifies that the grant is discretionary. In the circumstances whether or not an employee is granted TIL depends on the discretion of the employer after investigation and approval as per Para of R 7/2000. Failure by the employer to exercise its discretion properly (i.e. take into account relevant information), follow laid down procedures and act within the framework of the collective agreement will invite judicial scrutiny. 13 An employee may be granted sick leave on full pay where the provisions of paragraphs 7.5.1(a) (i) & (ii) of R 7/2000 are complied with and the employer after investigations, including investigations in accordance with Item 10(1) of Schedule 8 to the LRA, so decides. R 7/2000 is amplified by the Policy and Procedure on Incapacity Leave and for Ill Health Retirement (PILIR). PILIR requires that where TIL is refused the employer must cover the period of absence by unpaid leave In summary, where an employee has exhausted their 36 days sick leave in the particular 3 year cycle, is further temporarily incapacitated and: Their supervisor is informed of their illness A registered medical/dental practitioner, certifies in advance (unless this is not possible in the circumstances), that the employee is required to be absent from work, due to a temporary disability The employer is required, within 30 working days, to investigate, in accordance with Item 10(1) of Schedule 8 of the LRA, the nature and extent of the disability in relation to the employee s duties, the cause of the disability and dependent thereon the employee in question, may be granted additional paid sick leave (TIL) and if not, is given unpaid leave. 15 Not every failure on the part of the employer to comply with the collective agreement will necessarily result in a successful claim on the part of the employee. The employee is still required to show on balance that he qualified for the relief sought and that the employer failed to comply with the agreement. In casu the employee has to show that: He complied to the extent possible with the collective agreement He qualified for the particular relief The employer failed to properly consider the matter and failed to comply with laid down requirements In so failing the employer prejudiced the employee. 16 The employee exhausted his 36 days sick leave resultant on his condition (A26G) and thereafter applied for TIL for the first period (21 June 2010 to 30 July 2010). The HRM report (A26A-26D) assessed by Ms M Peach and Quality control by Dr VG Mbeje on the basis of a Specialist report form Dr GP Greeff dated 5 May 2010 (A18), a general practitioner s medical report by Dr RP Marx dated 29 June 2010, various medical certificates and a 1 See PILIR paragraphs , (g) or (j), depending on whether an application is for Short Period of TIL (1-29 working days requested per occasion) or Long Period of TIL (30 working days or more ) Page 4 of 8

5 radiologists report 2, recommended TIL for the 30 days requested. The reasons given inter alia were that the MDA recommends an optimum period of 130 working days for recovery from a subarachnoid haemorrhage. That the employee had to date utilized his 36 sick leave days and accordingly the number of days (30 working days) requested as TIL was appropriate in relation to this condition. The HRM also notes that the employee was accommodated in an administrative position when he returned to work. This last statement is at odds with the employee s statements at A7 paragraph 2 & 4, A12 paragraph 1, A35 /36 points 5, 8 & According to the HRM report, dated 24 May 2011 (A28), in respect of the employee s application for TIL, for the period 2 August 2010 to 2 September 2010 (30 working days) (the second period), it is based on the application form and a general practitioner s (Dr Marx) medical certificate dated 30 July 2010 (A16). This medical certificate, signed by Dr Marx, confirms that he examined the employee on 30 July 2010, in respect of a cerebral haemorrhage and that the employee was unfit to work from 31 July to 31 August 2010 although it was unsure when he would be able to return to work. 18 However the employer was in receipt of the employee s complete application for the second period as evidenced by its letter (A25) dated 4 November 2010 from the Station Commander Grahamstown to the National Commissioner Pretoria and date stamped by SAPS Absenteeism Management on 15 November 2010 (i.e. before the HRM report). The application included: Application form PERSAL reports relative to the periods in question 2 x radiologist s reports 2 x reports form the neurosurgeon Dr GP Greeff Sick leave record Medical certificate 19 The fact that the HRM had access only to the medical certificate (A16) is not explained. The additional documents, which for reasons unknown, were not forwarded to the HRM, were in the possession and control of the employer (in order that they be processed and forwarded to the HRM for their assessment and recommendation). Save to say that there is no explanation as why these documents were not forwarded to the HRM, the fact that they were not forwarded was through no fault of the employee. 20 The HRM report (24 May 2011) (A28), in terms of which the employee s application for TIL for the second period was not recommended, notes that: 20.1 The period applied for is continuous to the previous illness, for which the employee had used 66 days (i.e. the 36 sick leave days and 30 days TIL) for treatment of the same condition (A29) There is no evidence that the employee was admitted to hospital 20.3 No progress report or treatment plan was submitted 2 See A26 of Exhibit A Page 5 of 8

6 20.4 The employee was treated by a general practitioner and not a specialist for the period applied for 20.5 That they could not obtain further information and accordingly were unable to make an informed decision on the available medical information to justify the extended period 20.6 In the event the employee wishes to appeal he is recommended to resubmit his application with a detailed medical report from the specialist. 21 The HRM report is signed at page 3 thereof (A30) by Ms P Seoe as assessor and Ms S Ngema as Quality Assuror and at page 1 thereof according to the stamps affixed by GN Skosana on 27 May 2011 and Captain Koen on 8 June 2011 and as stated above does not indicate any medical qualifications and does not recommend TIL for the second period. 22 The employee submitted an appeal (A35) dated 20 September 2011 and the documents were again forwarded to SAPS Absenteeism Management (See A37 dated 23 September 2011 & A23 Checklist TIL Application dated 30 September 2011). This would in addition have included Dr Marx s report of 21 September 2011 which is dated and signed by him and is fairly explicit relative to the employee s condition. The employer however did not refer the matter to the HRM again and did not approve TIL (A May 2012 & A44 dated 1 December 2012) on the basis generally that no further information had been submitted and further that: 22.1 the HRM had not recommended TIL (for the second period), as there had been inappropriate management of illness 22.2 insufficient evidence submitted 22.3 insufficient medical information supplied by treating practitioner 22.4 no additional information apart from that which had been submitted by the employee for the application for TIL was submitted 22.5 the reports of Dr Greeff (Specialist) did not indicate any diagnoses of illness in order to evaluate the period 22.6 the radiologists report was dated the medical certificates did not contain the qualifications of the treating doctor 23 The above loses sight of the fact: 23.1 that the employee s condition was a continuing one stemming from the date the employee had his haemorrhage, that the MDA as referred to by the HRM (A26C) in its first report, recommends an optimum period of 130 days for recovery from a subarachnoid haemorrhage, 23.2 that the employee has taken a total of 96 days off work for his condition consequent on his subarachnoid haemorrhage (36 days Sick leave + 30 days TIL + the 30 days in question) and accordingly these 30 days would fall within the appropriate range for treatment (i.e. on the employer s own facts), 23.3 that the HRM s report which does not recommend TIL for the period 2 August 2010 to 2 September 2010 (A28-A32) on the face of it is not assessed or quality controlled / prepared by medical practitioners 23.4 that the HRM did not have access to the medical certificate dated and signed by Dr Marx of 21 September 2011 (A22) and the specialist s (Dr Greeff) report dated 18 October This report although stating Page 6 of 8

7 daar nie n duidelike organiese oorsaak op hierdie stadium is nie for the employee s symptoms recommends that he should continue to undergo treatment for his symptoms as necessary. It is also apparent that the HRM was of the view that the employee was assigned administrative duties, which as pointed out above is not apparent from his application (A7). Dr Marx s certificate (A22) draws attention to the severity of the employee s condition and that it takes a long while to recover (confirmed by the MDA) and that as the employee could not be placed on light duty he would be unfit to attend normal duties until at least 2 September In other words this is the recommended treatment for his symptoms as recommended by the specialist. 24 I am of the view and find accordingly that the employer has not properly considered the employee s application for TIL for the second period or complied with R 7/2000 in this regard, nor has it had the benefit of a considered and properly informed recommendation on the application in question by HRM. This is so because: 24.1 The HRM was not placed in possession of relevant medical reports, see above, (for the second period) including Dr Greeff s report of 5 May 2010 (A18), the radiologist s report of 29 April 2010 and Dr Marx s (the treating doctor) handwritten report of 21 September 2011 to the effect that the employee suffered a cerebral haemorrhage, a potentially life threatening condition with a long recovery period (supported in this case by the MDA) and that he would be incapable of fulfilling his duties for the period 2 August 2010 to 2 September 2010, given that light duty was not an option Although the HRM was aware that the nature of the employee s condition was continuous on his cerebral haemorrhage, it appears not to have been aware of his working conditions taking into account the recommended period for recovery The HRM report (A28-32) on the face of it was not assessed or approved by a medical practitioner 24.4 HRM did not have sight of the relevant medical certificates and reports, which were available but not forwarded to HRM and that the employer was aware of the additional reports / but appears to have been of the view that they had been submitted to HRM, and HRM had nevertheless not recommended the TIL application for the second period According to the employer, sans an HRM recommendation, the second specialist report by Dr Greeff did not add any thing further and accordingly without referring the matter back to HRM and seeking their recommendation (in respect of the employee s appeal) declined it. 25 Given that the HRM has not considered salient documents and accordingly been unable to make an informed recommendation and further that such recommendation concerns medical issues, I am of the view that although the employer has not complied with R 7/2000, that the employee s application for TIL (second period) together with the full supporting documentation should be re referred to the HRM to properly consider the matter and make a recommendation to the employer. 26 In the circumstances I make the following award. Page 7 of 8

8 AWARD 27 The employer s (the South African Police Service) decision not to grant the employee s (Warrant Officer JJ Bezuidenhout s, application for TIL for the period 2 August 2010 to 2 September 2010 as evidenced from the bundle of papers Exhibit A was not taken in compliance with and is in breach of R 7/2000 and accordingly must be redone. 28 The employer (the South African Police Service), is ordered to: 28.1 Resubmit the employee s (Warrant Officer JJ Bezuidenhout s, (PERSAL No )) application for TIL for the period 2 August 2010 to 2 September 2010 together with all supporting documents including the specialist reports (A18, A19), radiologists report (A20-21), medical certificates (A16, A17 & A22) and the application form and a copy of this award to the HRM, on receipt of this award To inform the employee within 30 days of the date of this award of the outcome of the employee s application for TIL for the period 2 August 2010 to 2 September In the event the employee is dissatisfied with the outcome in 28.2 above he may refer a fresh dispute. Sector: John Cheere Robertson PSCBC Panellist Public: Safety & Security Page 8 of 8