ELRC 837 20/21 GP
Text
ELRC 837 20/21 GP
Award Date:
23 June 2022
Panelist: Kuvonakala Pretty Chavalala
Case No.: ELRC 837 20/21 GP
Date of Award: 23 June 2022
In the ARBITRATION between:
Davelyn Morerwa
(Union / Applicant)
and
Department of Education Gauteng
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between Davelyn Morerwa (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the respondent”). The hearing concerned an alleged unfair dismissal dispute. The hearing sat on several occasions and was finalised on 06 June 2022.
[2] The applicant was represented by Adv. Mkhatshwa who was on brief from Molatudi Attorneys. The respondent was represented by Ms Magadla from the respondent.
[3] The applicant submitted two bundles of documents which were marked Bundle A and A1. The respondent submitted two bundle which were marked Bundle R1 and R2.
[4] On the last day of the hearing, parties could not immediately submit their closing arguments and they requested to submit written arguments. I granted the request and allowed parties to submit written arguments on or before 13 June 2022 and they both did so.
[5] The hearing was held in English and it was digitally and manually recorded.
PRELIMINARY ISSUES
[6] Legal representation was allowed per consent between the parties and the commissioner in terms of Clause 17 of the ELRC Constitution.
ISSUES TO BE DECIDED
[7] I am required to decide whether the dismissal of the applicant was procedurally and substantively fair and, if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[8] The applicant was permanently employed by the respondent as an educator effective from 01 July 2008. On 1 July 2016, she was promoted to a position of Head of Department (Science) at St Ansgar’s Combined Comprehensive farm School, Lanseria. She was dismissed on 31 January 2020 due to ill-health.
[9] She referred a dispute to the GPSSBC with a condonation application. The case was transferred to the ELRC and condonation was granted. The case was conciliated on 12 May 2022 and the dispute remained unresolved.
[10] The parties held a pre-arbitration conference and prepared minutes. As per minutes and narrowing of issues, the following were common cause issues: -
a) Date of employment, position, and the date of dismissal.
b) The applicant was diagnosed with meningitis and lost her sense of hearing. She subsequently never rendered services as HOD (science) at St Ansgar’s from July 2016 to January 2020.
c) A medical practitioner was appointed by the respondent to conduct an assessment on the applicant’s incapacity and her ability to perform on the job.
[11] The following were issues in dispute:
a) The procedural and substantive fairness of the dismissal.
b) Provision of reasonable accommodation.
[12] The applicant initially sought compensation and during evidence, sought retrospective reinstatement as a relief.
SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.
Respondent’s case
The respondent called 1 (one) witnesses who testified as follows:
Witness: Mavis Buyisiwe Mabuya who testified under oath and the summary is as follows:
[13] She is employed by the respondent and she is the director in the transformation section which deals with disability, employment equity, and gender issues. When dealing with disability cases, one of the aspects her section must consider is reasonable accommodation in line with the Employment Equity Act 55 of 1998.
[14] The case of the applicant was referred to her section by their district after the applicant had been absent for a while. She called a meeting with the applicant and discovered that applicant has a hearing problem. They advised the applicant to consult with an Ear Nose and Throat (ENT) specialist and submit a report which she did. In terms of the report, she was permanently deaf. It became clear that she could not communicate with learners in the mainstream schools.
[15] There are schools for the deaf in Gauteng and they informed the applicant of Philadelphia and St Vincent’s schools. They did not mention other schools because not all the schools write exams. They informed the applicant that the department can also assist her with sign language training so that she can teach in the special schools. They told her to visit those schools in order to see and assess which school she would prefer. The applicant, assisted by her husband came back to say the schools are too far.
[16] The sign language training was also to be done via Witwatersrand University (Wits). The registration requirements for Wits were that the person should already be on site and practicing sign language which the applicant was not. They discussed with the applicant and showed her the structure of ill-health pension. The witness wrote motivation for medical boarding. An appointment was set for the applicant to consult with a doctor, Health Risk Manager, appointed by the respondent and she attended. The report appears on page 4 to 6 of R1 bundle and the conclusion was that she was permanently disabled and the doctor recommended termination of employment.
[17] The applicant is appointed according to Employment of Educator’s Act and has a teaching qualification. According to Gauteng Department of Education (GDE) policy on the management of reasonable accommodation and provisioning of assistive devices to employees with disabilities (the reasonable accommodation policy) clause 11.2.1 (a), when reasonable accommodation is being considered, the core job function should not change or be compromised, which is teaching in this case. The department cannot convert her contract from Employment of Educators Act to be under the Public Service Act. There was subsequently no other option on reasonable accommodation.
[18] The applicant has always been on incapacity leave from July 2016 to date of her termination in 2020 and she was paid. For this to happen, she had to, which she did submit her own Doctors’ reports to the relevant sections. Her own doctor’s reports also indicated that her condition could not improve or be reversed.
[19] After the outcome of the independent medical assessment, a letter as appears on page 1 of R1 with the heading ‘Independent Medical Assessment’ was written to the applicant. On paragraph 2 of the letter, she was advised that the assessment report shows that she is permanently incapacitated to perform her duties. On paragraph 3 she was advised that the respondent intends to dispense with pre-termination procedures. She was required as per clause four of that letter to indicate whether the employer should dispense with pre-termination procedures failing which an enquiry would be held.
[20] The applicant wrote a letter on page 3 stating that she agrees with the decision of the department to be discharged of her duties. She stated in her letter that she was learning sign language and once familiar with it, she will take a course with the University of Witwatersrand.
[21] She referred to 10 and 11 of bundle R1, being the minutes of the meeting that took place on 28 July 2017 at Bosmont primary. She conceded that the views of the applicant were not noted in the minutes but denied that she could just arrived at the meeting and just talk and dismiss meeting without hearing the views of the applicant.
[22] The process was fair according to her, there were no shortcuts taken and that is why the entire process lasted for three (3) years and the applicant was not rendering services. The applicant did not suggest alternatives as well and being appointed under Employment of Educators Act, there would be few such alternatives because her core duty would be to teach.
[23] She wrote a memo to the applicant on 9 May 2018 as appears on page 9 of bundle R1. She stated on point two (2) of the memo that the applicant would be discharged on ill-health reasons as placement would cause undue hardship to the respondent . The ‘undue hardship’ has to do with money for the training, the applicant being paid but not working and the time that it would take. She conceded that the said memo required the applicant to indicate by way of crossing ‘agree or not agree to the reasonable accommodation but the applicant did not make a selection.
[24] She conceded that without an indication of the applicant’s choice on pretermination procedures, the respondent had to make follow up or even follow pretermination procedures. In a letter where the applicant agrees to be terminated, she did not comment on pre-termination procedures, in other words, she did not give away her rights.
[25] She does not know the applicant’s other qualifications. She conceded that her section should have mention all other schools for the applicant to consider and weigh her options. She does not know where the applicant stays. She did not deny that St Vincent is only 8.3 km from the applicant’s house while the applicant had previously travelled 145km to go to work at Koena Molapo.
[26] She denied that she had promised the applicant monies over an above her pension monies.
[27] The relationship between the employer and the employee did not break down, the employee can empower herself and come back to the department. At no stage did the applicant submit that she is medically fit to perform her duties or dispute the report of the Health Risk Manager.
THE APPLICANT’S CASE
The applicant, Matlala Davelyn Morerwa testified under oath and the summary of which is as follows:
[28] She was appointed at position of HOD at St Ansgar’s effectively from July 2016. She never rendered services because she fell sick before he could report there.
[29] On 28 July 2017 she was invited to a meeting in Florida Primary with Ms Mabuya. She attended the meeting. Ms Mabuya told her to look for an institution for sign language, the department would pay for her. She was so happy that she would continue working. On 25 April 2018, she was invited to Omonde for a meeting. In that meeting, she was told that the department can no longer accommodate her because she was an HOD and was earning a lot of money. The department will discharge her and give her a lumpsum of +- R800 000.00 and a stipend of R6000 monthly.
[30] Later, she received a message form her husband that the departments want her to go to Dr Nyathi’s practice 04 April 2019. The department did not explain why but she went to Dr Nyathi’s practice in Midrand. Usually doctors would put her in machines in order to examine her and she expected that as well but Doctor Nyathi did not do so. He just read her reports and gave her and her husband financial counselling. She never was given his report.
[31] On 08 October 2019 Mr Banda from the respondent went to her house. He instructed her to write a letter and told her what to write. He told her that should she not write the letter, she will not get the pension fund monies. She wrote a letter on page 3 of bundle R1 to the effect that she agrees to be discharged from her duties based on her medical report. She further stated that she is taking a sign language course with St Vincent and once familiar with it, she will take on a course with the university of Witwatersrand. She stated that she would inform the respondent of her progress.
[32] St Vincent, Philadelphia and Sizwile were mentioned in the second meeting for her to choose and go on a 6-month trial. This was just in principle not in practice.
[33] She acknowledged the letter dated 09 May 2018 headed ‘reasonable accommodation’ that was sent to her by the department. She was required to select whether she agreed or did not agree on the reasonable accommodation process but did not make selections. She wanted clarity on the first point which reads ‘all processes involved with an attempt for your placement in relation to your disability were explained.’ She hoped that Ms Mabuya would contact her and ask her what her selection is so that she could get clarity also but no one contacted her.
[34] Again on the letter headed ‘independent medical assessment’ as appears on page 1-2 of R1, the applicant was required to state whether she agrees with paragraph 3 (dispensing with pretermination procedures) and whether she agrees that the department can proceed to terminate her services. She did not make a selection because she wanted to be clarified on the letter. No one followed up on her to ask her what her choice was.
[35] No one from the respondent ever asked her if she could make tea or do anything else other than teaching. At best, the respondent sold her dreams that did not even materialise. Only three meetings were held with her, first one on 08 May 2017, second one on July 2017 and last one on 25 April 2018.
[36] She conceded that according to her doctors, specifically Dr A Vander Merwe, she has permanently lost her hearing altogether. She stated that she thus cannot be in the mainstream school but deaf school or any alternative position. She is not yet skilled in terms of sign language; she only knows basic communication. She cannot teach at a deaf school as yet because the department did not give her the training opportunity. She could teach if given sign language training first.
[37] She conceded that the last paragraph on page 3 of Bundle R1 was her own thought and writing, she was not instructed by Mr Banda to write it. In terms of that paragraph, she stated that she is busy with sign language training and once she is familiar with it, she will register with Wits and inform the respondent of progress.
[38] The department sold her dreams because she was promised three sets of monies. She was to receive R800 000.00 from the department plus her pension monies plus retirement annuity monies. She wants to work and she would love it if the respondent could reinstate her retrospectively.
ANALYSIS OF EVIDENCE AND ARGUMENT
[39] In terms of section 192(1) of the Act, the employee bears the onus to prove the existence of dismissal. The existence of dismissal was placed out of issue because the respondent confirmed that the applicant was dismissed.
[40] In terms of section 192(2) of the Act, if the existence of the dismissal is established, the onus rests on the employer to prove that the dismissal is fair. In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.
[41] The applicant challenged both procedure and substance for the dismissal. It was common cause that the applicant was dismissed for reasons related to ill-health after she was diagnosed with bilateral hearing loss as a result of meningitis.
[42] In terms item 11 of Schedule 8 of the Code of Good Practice: Dismissal of the LRA, any person determining whether a dismissal arising from ill health or injury is unfair should consider-
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable-
(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and
(iii) the availability of any suitable alternative work.
[43] Over and above the LRA and its codes of good practice, several manuscripts in the education sector provide for a process that must be followed once it perceived that the applicant can no longer perform her job due to ill-health.
[44] In terms of section 12 of the Employment of Educators Act 78 of 1998 (EE Act) an educator may be discharged on account of ill-health in the circumstances referred to in Schedule 1. Schedule 1 of the EE Act deals with incapacity code and procedures for poor work performance and the relevant extracts provide as follows: -
1. Codes, rules and standards-
(1) The Code of Good Practice contained in Schedule 8 to the Labour Relations Act, 1995 (Act No. 66 of 1995), insofar as it relates to incapacity, constitutes part of this Code and Procedures, in respect of poor work performance.
(2) In applying this Code and Procedures, the relevant employer must assess the incapacity of an educator by considering –
(a) the extent to which the incapacity impacts on the work of the Department of Education or provincial department of education, or the public school, public further education and training institution or public adult learning centre;
2….
3. Procedure in respect of ill health or injury
(1) If the employer is of the view that an educator is not performing in accordance with the post requirements that the educator has been employed to perform, as a result of poor health or injury, or an educator applies for a discharge from service on account of continuous ill health or injury, the employer must investigate the extent of the ill health or injury.
(2) In conducting the investigation the employer must give the educator, or the trade union representative of the educator or fellow employee, the opportunity to state the case of the educator and to be heard on all the issues that the employer is investigating.
(3) (a) Subject to section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998), the employer must appoint at least one registered medical practitioner to examine the educator at the State’s expense and to report on the educator’s state of health.
(b) An educator is entitled to nominate any other registered medical practitioner of his or her choice at the educator’s own expense to report on the educator’s state of health.
(c) ….
(d) (i) The medical practitioner contemplated in paragraph (a) must, on completion of the medical examination, provide the employer with a report on the nature and extent of the educator’s ill health or injury and whether it is temporary or permanent, and the expected period of the educator’s incapacity.
(ii) The medical practitioner contemplated in paragraph (b) may also submit a report if the educator is dissatisfied with a report contemplated in paragraph (a).
(4) Based on the medical reports the employer must determine whether or not the nature of the educator’s ill health or injury is of a temporary or permanent nature and the period of time that the educator is likely to be absent from work.
(5) After the investigation of the extent of the educator’s ill health or injury, the employer must provide the educator with a written report setting out the results or findings of the investigation.
(6) If the educator’s ill health or injury is of a permanent nature the employer must investigate the possibility of –
(a) securing alternative employment for the educator;
(b) adapting the duties or work circumstances of the educator to accommodate the educator’s ill health or injury; or
(c) consider the termination of the educator’s service with effect from a date determined by the employer.
(7) ….
(8) (a) Before acting in accordance with subitem (6), the employer must convene an inquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her, which shall include the right to –
(i) call, examine and cross-examine witnesses;
(ii) bring all relevant documentation to the attention of the person presiding over the inquiry, and have access to documents produced in evidence by the employer;
(iii) be represented at the proceedings by a co-employee or trade union representative;
(iv) have an interpreter present if the educator so requires;
(v) lead all relevant evidence, including evidence in mitigation of sanction, if necessary.
(b) The provisions of items 5, 7, 8 and 9 of Schedule 2 apply to these inquiries, read with the changes required by the context.
[45] Whilst an employer may not be obliged to retain an employee who is not productive, fairness requires that a proper assessment be made before resorting to dismissal. Ill-health dismissal is often a no-fault one and its process, as can be noted in the above extracts, calls for a step-wise process that involves both parties.
[46] It can be easily gleaned from the evidence of both parties that the applicant can no longer perform her duties as an educator in the mainstream school. This was the evidence of the respondent’s witness and also according to the independent medical report of the health risk manager, Dr Nyathi. There can be no gainsaying that successful teaching in mainstream schools require two-way communication between the teacher and the learner. In the applicant’s case, this has become impossible.
[47] The applicant herself also stated that her own reports stated that she was permanently deaf. She in fact reiterated that she could no longer teach in the mainstream schools. This is exactly the reason the applicant could not report at work from July 2016 to January 2020.
[48] It was also undisputed that the applicant’s medical reports were submitted to the respondent. It was submitted that those reports were to the effect that the applicant is permanently deaf and the submission of those reports made it possible for the applicant to be approved for incapacity leave and be paid during the three years and six months that she did not render services.
[49] The actual medical assessment report Dr Nyathi was not given to the applicant, however, a letter headed independent medical assessment was given to the applicant. Such a letter did state that the report of the Doctor indicated that the applicant is unable to perform her duties.
[50] It is noteworthy to state that even in the arbitration process, the applicant did not present any medical evidence that proffered anything to the contrary in terms of her disability. If the applicant wanted to prove the incorrectness of Doctor Nyathi’s findings, she could and would have done so through her own experts at the arbitration process. Even when she gave testimony, she did not deny the disability and its extents. Thus the method that Dr Nyathi employed to examine her is unimportant.
[51] It is my finding that the respondent proved on balance of probabilities that investigation was done that proved that the applicant was no longer able to perform her job in the mainstream schools. I find that in terms of schedule 1 of the EE Act (supra) , the employer has complied with the procedure as stipulated in section 3 (1) -(5). It is my finding that the respondent investigated the nature and extent of the disability.
[52] It is not so that once it is established that an employee cannot perform at the required level in her particular position there is no longer any duty on the employer to keep her and that her dismissal will be fair. The procedures from 3(6) of schedule 1 of the EE Act come into play. It was submitted and argued in this case that the employer did not reasonably accommodate the employee and did not follow process even in dismissing her.
[53] Article 2 of the UN Convention on the Rights of Persons with Disabilities (hereinafter the “Convention”) provides that reasonable accommodation refers to necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedom. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. In this case, it was never alleged that the disability was related to an injury on duty.
[54] In terms of Schedule 1 of the EE Act and the Code of good practice of the LRA, in cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee's disability.
[55] As testified, the applicant wrote a letter stating that she agrees to be terminated by the respondent. She stated that she was instructed by Mr Banda to write that letter. It became apparent during the applicant’s cross- examination that the last paragraph of that letter was her own thoughts and idea. It was never the applicant’s case that she did not understand what she was writing, only that she had to write the letter in order to have access to her pension monies. Mr Banda was not called to give his version on the circumstances surrounding the writing of this letter. Of note, in the letter and specifically on the paragraph that the applicant admits having authored herself provides that the applicant will learn sign language and then register with Wits. This statement favours the probability that the Wits requirements for sign language training were discussed with the applicant as part of reasonable accommodation. The evidence of the respondent was that in order to accommodate the applicant, paying for the applicant’s sign language course was once in the cards, it became an impossibility because of Wits’ requirements which the applicant did not meet. The applicant accepts that for her to teach in the special schools, she would need sign language training.
[56] It must also be noted that the applicant may not stand by the wayside and just observe the actions or inactions of the respondent in its handling of the incapacity process. She also was under the obligation to point out or raise concerns on what she considered to be unfair. The applicant stated that she was told that her sign language-training could no longer be funded and she received memos that she did not fully understand. Instead of writing emails or grieving, she left the acknowledgement section of the forms not fully filled in the hope that someone would contact her. She never at once suggested the alternative positions that she felt she would be able to render her services in or suggest how else she could be reasonably accommodated.
[57] Even at the arbitration, except for mentioning her qualifications, she did not point out what other positions she thinks she could work at or how else she could be reasonably accommodated. The applicant adopted a passive stature and left these questions at the door of the respondent. This becomes clear in her testimony when she stated that she did not make selections in the letters sent to her because she did not understand certain aspects, she sated that she hoped the respondent would contact her to ask her why she had not made selections. It was only after her termination that the applicant sent emails and SMSs to the respondent’s officials.
[58] It is against this background that I find that the respondent, in its intention and attempt to fund for the applicant’s sign language training, it considered the question of reasonable accommodation.
[59] Be that as it may, because the applicant had not absolved the respondent from following pretermination procedures, the employer was obliged, before dismissing the applicant to act in terms of Schedule 1, section 3 (8) which states that the employer must convene an inquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her. The enquiry into incapacity is not solely concerned with an employee’s inability to perform their present duties but even if it is the only question, address or evaluate the feasibility or prospect of alternative employment.
[60] The respondent’s witness did not deny that she is unaware of what else the applicant could do or the extent of her qualifications. Although some of the letters of the respondent stated that the provision of alternative work was not an option, it is not clear how that decision was reached and also what alternative work was considered by the employer. Because the applicant did not give away her rights in terms of pre-termination procedures, the respondent should have held an enquiry, even if the decision of the employer would still have been the same.
[61] The courts have often rejected the no difference principle in that the notion that an employee who has been denied the advantages of fair process should be precluded from relief, only because the employer can satisfy the court that objectively the result was the correct one or the result would in any event have been reached.
[62] In consideration of the facts that the respondent investigated the nature and extent of the disability and found it to be permanent; that the applicant even by her own admission could no longer perform her duties in the main stream schools; that in order to be teach in the special schools (deaf-schools) she needed to be fluent in sign language and she was not; that the respondent could no longer pay for sign-language training with Wits because she did not meet its admission requirements and that the applicant had been away from work for three years and six months, it is my finding that the dismissal was substantively fair.
[63] It is my finding that the respondent’s failure to hold a hearing or an enquiry rendered the dismissal to be only procedurally unfair.
[64] On the question of the relief sought, I am guided by the provisions of section 193 of the LRA which provides that the arbitrator must not require the employer to re-instate or re-employ the employee if the dismissal is unfair only because the employer did not follow a fair procedure.
[65] I have considered the period which the applicant has worked for the respondent; that the termination of services was as a result of an unfortunate circumstances and not the applicant’s own doing; the fact that the applicant’s disability was not as a result of an injury on duty; the applicant was paid by the respondent without rendering services for a period of three years and six months and that I have found that the dismissal was substantively fair. I order that the respondent compensates the applicant in the amount of R60622.94 equivalent to 2 month’s salary.
AWARD
[66] The dismissal of the applicant is substantively fair but procedurally unfair.
[67] The respondent is ordered to pay the applicant an amount of R60622.94 (subject to the allowable statutory deductions) in respect of compensation. The said amount must be paid to the applicant’s account numbers wherein she was receiving her salary.
[68] The said amount must be paid on or before the 30 July 2022 failing which the said amount shall bear interest from date of this award to date of payment at the applicable interest rates.
[69] I make no order as to costs
Signed and dated at Pretoria on this 23 day of June 2022
Kuvonakala Chavalala
ELRC Commissioner
Case No.: ELRC 837 20/21 GP
Date of Award: 23 June 2022
In the ARBITRATION between:
Davelyn Morerwa
(Union / Applicant)
and
Department of Education Gauteng
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between Davelyn Morerwa (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the respondent”). The hearing concerned an alleged unfair dismissal dispute. The hearing sat on several occasions and was finalised on 06 June 2022.
[2] The applicant was represented by Adv. Mkhatshwa who was on brief from Molatudi Attorneys. The respondent was represented by Ms Magadla from the respondent.
[3] The applicant submitted two bundles of documents which were marked Bundle A and A1. The respondent submitted two bundle which were marked Bundle R1 and R2.
[4] On the last day of the hearing, parties could not immediately submit their closing arguments and they requested to submit written arguments. I granted the request and allowed parties to submit written arguments on or before 13 June 2022 and they both did so.
[5] The hearing was held in English and it was digitally and manually recorded.
PRELIMINARY ISSUES
[6] Legal representation was allowed per consent between the parties and the commissioner in terms of Clause 17 of the ELRC Constitution.
ISSUES TO BE DECIDED
[7] I am required to decide whether the dismissal of the applicant was procedurally and substantively fair and, if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[8] The applicant was permanently employed by the respondent as an educator effective from 01 July 2008. On 1 July 2016, she was promoted to a position of Head of Department (Science) at St Ansgar’s Combined Comprehensive farm School, Lanseria. She was dismissed on 31 January 2020 due to ill-health.
[9] She referred a dispute to the GPSSBC with a condonation application. The case was transferred to the ELRC and condonation was granted. The case was conciliated on 12 May 2022 and the dispute remained unresolved.
[10] The parties held a pre-arbitration conference and prepared minutes. As per minutes and narrowing of issues, the following were common cause issues: -
a) Date of employment, position, and the date of dismissal.
b) The applicant was diagnosed with meningitis and lost her sense of hearing. She subsequently never rendered services as HOD (science) at St Ansgar’s from July 2016 to January 2020.
c) A medical practitioner was appointed by the respondent to conduct an assessment on the applicant’s incapacity and her ability to perform on the job.
[11] The following were issues in dispute:
a) The procedural and substantive fairness of the dismissal.
b) Provision of reasonable accommodation.
[12] The applicant initially sought compensation and during evidence, sought retrospective reinstatement as a relief.
SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.
Respondent’s case
The respondent called 1 (one) witnesses who testified as follows:
Witness: Mavis Buyisiwe Mabuya who testified under oath and the summary is as follows:
[13] She is employed by the respondent and she is the director in the transformation section which deals with disability, employment equity, and gender issues. When dealing with disability cases, one of the aspects her section must consider is reasonable accommodation in line with the Employment Equity Act 55 of 1998.
[14] The case of the applicant was referred to her section by their district after the applicant had been absent for a while. She called a meeting with the applicant and discovered that applicant has a hearing problem. They advised the applicant to consult with an Ear Nose and Throat (ENT) specialist and submit a report which she did. In terms of the report, she was permanently deaf. It became clear that she could not communicate with learners in the mainstream schools.
[15] There are schools for the deaf in Gauteng and they informed the applicant of Philadelphia and St Vincent’s schools. They did not mention other schools because not all the schools write exams. They informed the applicant that the department can also assist her with sign language training so that she can teach in the special schools. They told her to visit those schools in order to see and assess which school she would prefer. The applicant, assisted by her husband came back to say the schools are too far.
[16] The sign language training was also to be done via Witwatersrand University (Wits). The registration requirements for Wits were that the person should already be on site and practicing sign language which the applicant was not. They discussed with the applicant and showed her the structure of ill-health pension. The witness wrote motivation for medical boarding. An appointment was set for the applicant to consult with a doctor, Health Risk Manager, appointed by the respondent and she attended. The report appears on page 4 to 6 of R1 bundle and the conclusion was that she was permanently disabled and the doctor recommended termination of employment.
[17] The applicant is appointed according to Employment of Educator’s Act and has a teaching qualification. According to Gauteng Department of Education (GDE) policy on the management of reasonable accommodation and provisioning of assistive devices to employees with disabilities (the reasonable accommodation policy) clause 11.2.1 (a), when reasonable accommodation is being considered, the core job function should not change or be compromised, which is teaching in this case. The department cannot convert her contract from Employment of Educators Act to be under the Public Service Act. There was subsequently no other option on reasonable accommodation.
[18] The applicant has always been on incapacity leave from July 2016 to date of her termination in 2020 and she was paid. For this to happen, she had to, which she did submit her own Doctors’ reports to the relevant sections. Her own doctor’s reports also indicated that her condition could not improve or be reversed.
[19] After the outcome of the independent medical assessment, a letter as appears on page 1 of R1 with the heading ‘Independent Medical Assessment’ was written to the applicant. On paragraph 2 of the letter, she was advised that the assessment report shows that she is permanently incapacitated to perform her duties. On paragraph 3 she was advised that the respondent intends to dispense with pre-termination procedures. She was required as per clause four of that letter to indicate whether the employer should dispense with pre-termination procedures failing which an enquiry would be held.
[20] The applicant wrote a letter on page 3 stating that she agrees with the decision of the department to be discharged of her duties. She stated in her letter that she was learning sign language and once familiar with it, she will take a course with the University of Witwatersrand.
[21] She referred to 10 and 11 of bundle R1, being the minutes of the meeting that took place on 28 July 2017 at Bosmont primary. She conceded that the views of the applicant were not noted in the minutes but denied that she could just arrived at the meeting and just talk and dismiss meeting without hearing the views of the applicant.
[22] The process was fair according to her, there were no shortcuts taken and that is why the entire process lasted for three (3) years and the applicant was not rendering services. The applicant did not suggest alternatives as well and being appointed under Employment of Educators Act, there would be few such alternatives because her core duty would be to teach.
[23] She wrote a memo to the applicant on 9 May 2018 as appears on page 9 of bundle R1. She stated on point two (2) of the memo that the applicant would be discharged on ill-health reasons as placement would cause undue hardship to the respondent . The ‘undue hardship’ has to do with money for the training, the applicant being paid but not working and the time that it would take. She conceded that the said memo required the applicant to indicate by way of crossing ‘agree or not agree to the reasonable accommodation but the applicant did not make a selection.
[24] She conceded that without an indication of the applicant’s choice on pretermination procedures, the respondent had to make follow up or even follow pretermination procedures. In a letter where the applicant agrees to be terminated, she did not comment on pre-termination procedures, in other words, she did not give away her rights.
[25] She does not know the applicant’s other qualifications. She conceded that her section should have mention all other schools for the applicant to consider and weigh her options. She does not know where the applicant stays. She did not deny that St Vincent is only 8.3 km from the applicant’s house while the applicant had previously travelled 145km to go to work at Koena Molapo.
[26] She denied that she had promised the applicant monies over an above her pension monies.
[27] The relationship between the employer and the employee did not break down, the employee can empower herself and come back to the department. At no stage did the applicant submit that she is medically fit to perform her duties or dispute the report of the Health Risk Manager.
THE APPLICANT’S CASE
The applicant, Matlala Davelyn Morerwa testified under oath and the summary of which is as follows:
[28] She was appointed at position of HOD at St Ansgar’s effectively from July 2016. She never rendered services because she fell sick before he could report there.
[29] On 28 July 2017 she was invited to a meeting in Florida Primary with Ms Mabuya. She attended the meeting. Ms Mabuya told her to look for an institution for sign language, the department would pay for her. She was so happy that she would continue working. On 25 April 2018, she was invited to Omonde for a meeting. In that meeting, she was told that the department can no longer accommodate her because she was an HOD and was earning a lot of money. The department will discharge her and give her a lumpsum of +- R800 000.00 and a stipend of R6000 monthly.
[30] Later, she received a message form her husband that the departments want her to go to Dr Nyathi’s practice 04 April 2019. The department did not explain why but she went to Dr Nyathi’s practice in Midrand. Usually doctors would put her in machines in order to examine her and she expected that as well but Doctor Nyathi did not do so. He just read her reports and gave her and her husband financial counselling. She never was given his report.
[31] On 08 October 2019 Mr Banda from the respondent went to her house. He instructed her to write a letter and told her what to write. He told her that should she not write the letter, she will not get the pension fund monies. She wrote a letter on page 3 of bundle R1 to the effect that she agrees to be discharged from her duties based on her medical report. She further stated that she is taking a sign language course with St Vincent and once familiar with it, she will take on a course with the university of Witwatersrand. She stated that she would inform the respondent of her progress.
[32] St Vincent, Philadelphia and Sizwile were mentioned in the second meeting for her to choose and go on a 6-month trial. This was just in principle not in practice.
[33] She acknowledged the letter dated 09 May 2018 headed ‘reasonable accommodation’ that was sent to her by the department. She was required to select whether she agreed or did not agree on the reasonable accommodation process but did not make selections. She wanted clarity on the first point which reads ‘all processes involved with an attempt for your placement in relation to your disability were explained.’ She hoped that Ms Mabuya would contact her and ask her what her selection is so that she could get clarity also but no one contacted her.
[34] Again on the letter headed ‘independent medical assessment’ as appears on page 1-2 of R1, the applicant was required to state whether she agrees with paragraph 3 (dispensing with pretermination procedures) and whether she agrees that the department can proceed to terminate her services. She did not make a selection because she wanted to be clarified on the letter. No one followed up on her to ask her what her choice was.
[35] No one from the respondent ever asked her if she could make tea or do anything else other than teaching. At best, the respondent sold her dreams that did not even materialise. Only three meetings were held with her, first one on 08 May 2017, second one on July 2017 and last one on 25 April 2018.
[36] She conceded that according to her doctors, specifically Dr A Vander Merwe, she has permanently lost her hearing altogether. She stated that she thus cannot be in the mainstream school but deaf school or any alternative position. She is not yet skilled in terms of sign language; she only knows basic communication. She cannot teach at a deaf school as yet because the department did not give her the training opportunity. She could teach if given sign language training first.
[37] She conceded that the last paragraph on page 3 of Bundle R1 was her own thought and writing, she was not instructed by Mr Banda to write it. In terms of that paragraph, she stated that she is busy with sign language training and once she is familiar with it, she will register with Wits and inform the respondent of progress.
[38] The department sold her dreams because she was promised three sets of monies. She was to receive R800 000.00 from the department plus her pension monies plus retirement annuity monies. She wants to work and she would love it if the respondent could reinstate her retrospectively.
ANALYSIS OF EVIDENCE AND ARGUMENT
[39] In terms of section 192(1) of the Act, the employee bears the onus to prove the existence of dismissal. The existence of dismissal was placed out of issue because the respondent confirmed that the applicant was dismissed.
[40] In terms of section 192(2) of the Act, if the existence of the dismissal is established, the onus rests on the employer to prove that the dismissal is fair. In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.
[41] The applicant challenged both procedure and substance for the dismissal. It was common cause that the applicant was dismissed for reasons related to ill-health after she was diagnosed with bilateral hearing loss as a result of meningitis.
[42] In terms item 11 of Schedule 8 of the Code of Good Practice: Dismissal of the LRA, any person determining whether a dismissal arising from ill health or injury is unfair should consider-
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable-
(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and
(iii) the availability of any suitable alternative work.
[43] Over and above the LRA and its codes of good practice, several manuscripts in the education sector provide for a process that must be followed once it perceived that the applicant can no longer perform her job due to ill-health.
[44] In terms of section 12 of the Employment of Educators Act 78 of 1998 (EE Act) an educator may be discharged on account of ill-health in the circumstances referred to in Schedule 1. Schedule 1 of the EE Act deals with incapacity code and procedures for poor work performance and the relevant extracts provide as follows: -
1. Codes, rules and standards-
(1) The Code of Good Practice contained in Schedule 8 to the Labour Relations Act, 1995 (Act No. 66 of 1995), insofar as it relates to incapacity, constitutes part of this Code and Procedures, in respect of poor work performance.
(2) In applying this Code and Procedures, the relevant employer must assess the incapacity of an educator by considering –
(a) the extent to which the incapacity impacts on the work of the Department of Education or provincial department of education, or the public school, public further education and training institution or public adult learning centre;
2….
3. Procedure in respect of ill health or injury
(1) If the employer is of the view that an educator is not performing in accordance with the post requirements that the educator has been employed to perform, as a result of poor health or injury, or an educator applies for a discharge from service on account of continuous ill health or injury, the employer must investigate the extent of the ill health or injury.
(2) In conducting the investigation the employer must give the educator, or the trade union representative of the educator or fellow employee, the opportunity to state the case of the educator and to be heard on all the issues that the employer is investigating.
(3) (a) Subject to section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998), the employer must appoint at least one registered medical practitioner to examine the educator at the State’s expense and to report on the educator’s state of health.
(b) An educator is entitled to nominate any other registered medical practitioner of his or her choice at the educator’s own expense to report on the educator’s state of health.
(c) ….
(d) (i) The medical practitioner contemplated in paragraph (a) must, on completion of the medical examination, provide the employer with a report on the nature and extent of the educator’s ill health or injury and whether it is temporary or permanent, and the expected period of the educator’s incapacity.
(ii) The medical practitioner contemplated in paragraph (b) may also submit a report if the educator is dissatisfied with a report contemplated in paragraph (a).
(4) Based on the medical reports the employer must determine whether or not the nature of the educator’s ill health or injury is of a temporary or permanent nature and the period of time that the educator is likely to be absent from work.
(5) After the investigation of the extent of the educator’s ill health or injury, the employer must provide the educator with a written report setting out the results or findings of the investigation.
(6) If the educator’s ill health or injury is of a permanent nature the employer must investigate the possibility of –
(a) securing alternative employment for the educator;
(b) adapting the duties or work circumstances of the educator to accommodate the educator’s ill health or injury; or
(c) consider the termination of the educator’s service with effect from a date determined by the employer.
(7) ….
(8) (a) Before acting in accordance with subitem (6), the employer must convene an inquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her, which shall include the right to –
(i) call, examine and cross-examine witnesses;
(ii) bring all relevant documentation to the attention of the person presiding over the inquiry, and have access to documents produced in evidence by the employer;
(iii) be represented at the proceedings by a co-employee or trade union representative;
(iv) have an interpreter present if the educator so requires;
(v) lead all relevant evidence, including evidence in mitigation of sanction, if necessary.
(b) The provisions of items 5, 7, 8 and 9 of Schedule 2 apply to these inquiries, read with the changes required by the context.
[45] Whilst an employer may not be obliged to retain an employee who is not productive, fairness requires that a proper assessment be made before resorting to dismissal. Ill-health dismissal is often a no-fault one and its process, as can be noted in the above extracts, calls for a step-wise process that involves both parties.
[46] It can be easily gleaned from the evidence of both parties that the applicant can no longer perform her duties as an educator in the mainstream school. This was the evidence of the respondent’s witness and also according to the independent medical report of the health risk manager, Dr Nyathi. There can be no gainsaying that successful teaching in mainstream schools require two-way communication between the teacher and the learner. In the applicant’s case, this has become impossible.
[47] The applicant herself also stated that her own reports stated that she was permanently deaf. She in fact reiterated that she could no longer teach in the mainstream schools. This is exactly the reason the applicant could not report at work from July 2016 to January 2020.
[48] It was also undisputed that the applicant’s medical reports were submitted to the respondent. It was submitted that those reports were to the effect that the applicant is permanently deaf and the submission of those reports made it possible for the applicant to be approved for incapacity leave and be paid during the three years and six months that she did not render services.
[49] The actual medical assessment report Dr Nyathi was not given to the applicant, however, a letter headed independent medical assessment was given to the applicant. Such a letter did state that the report of the Doctor indicated that the applicant is unable to perform her duties.
[50] It is noteworthy to state that even in the arbitration process, the applicant did not present any medical evidence that proffered anything to the contrary in terms of her disability. If the applicant wanted to prove the incorrectness of Doctor Nyathi’s findings, she could and would have done so through her own experts at the arbitration process. Even when she gave testimony, she did not deny the disability and its extents. Thus the method that Dr Nyathi employed to examine her is unimportant.
[51] It is my finding that the respondent proved on balance of probabilities that investigation was done that proved that the applicant was no longer able to perform her job in the mainstream schools. I find that in terms of schedule 1 of the EE Act (supra) , the employer has complied with the procedure as stipulated in section 3 (1) -(5). It is my finding that the respondent investigated the nature and extent of the disability.
[52] It is not so that once it is established that an employee cannot perform at the required level in her particular position there is no longer any duty on the employer to keep her and that her dismissal will be fair. The procedures from 3(6) of schedule 1 of the EE Act come into play. It was submitted and argued in this case that the employer did not reasonably accommodate the employee and did not follow process even in dismissing her.
[53] Article 2 of the UN Convention on the Rights of Persons with Disabilities (hereinafter the “Convention”) provides that reasonable accommodation refers to necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedom. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. In this case, it was never alleged that the disability was related to an injury on duty.
[54] In terms of Schedule 1 of the EE Act and the Code of good practice of the LRA, in cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee's disability.
[55] As testified, the applicant wrote a letter stating that she agrees to be terminated by the respondent. She stated that she was instructed by Mr Banda to write that letter. It became apparent during the applicant’s cross- examination that the last paragraph of that letter was her own thoughts and idea. It was never the applicant’s case that she did not understand what she was writing, only that she had to write the letter in order to have access to her pension monies. Mr Banda was not called to give his version on the circumstances surrounding the writing of this letter. Of note, in the letter and specifically on the paragraph that the applicant admits having authored herself provides that the applicant will learn sign language and then register with Wits. This statement favours the probability that the Wits requirements for sign language training were discussed with the applicant as part of reasonable accommodation. The evidence of the respondent was that in order to accommodate the applicant, paying for the applicant’s sign language course was once in the cards, it became an impossibility because of Wits’ requirements which the applicant did not meet. The applicant accepts that for her to teach in the special schools, she would need sign language training.
[56] It must also be noted that the applicant may not stand by the wayside and just observe the actions or inactions of the respondent in its handling of the incapacity process. She also was under the obligation to point out or raise concerns on what she considered to be unfair. The applicant stated that she was told that her sign language-training could no longer be funded and she received memos that she did not fully understand. Instead of writing emails or grieving, she left the acknowledgement section of the forms not fully filled in the hope that someone would contact her. She never at once suggested the alternative positions that she felt she would be able to render her services in or suggest how else she could be reasonably accommodated.
[57] Even at the arbitration, except for mentioning her qualifications, she did not point out what other positions she thinks she could work at or how else she could be reasonably accommodated. The applicant adopted a passive stature and left these questions at the door of the respondent. This becomes clear in her testimony when she stated that she did not make selections in the letters sent to her because she did not understand certain aspects, she sated that she hoped the respondent would contact her to ask her why she had not made selections. It was only after her termination that the applicant sent emails and SMSs to the respondent’s officials.
[58] It is against this background that I find that the respondent, in its intention and attempt to fund for the applicant’s sign language training, it considered the question of reasonable accommodation.
[59] Be that as it may, because the applicant had not absolved the respondent from following pretermination procedures, the employer was obliged, before dismissing the applicant to act in terms of Schedule 1, section 3 (8) which states that the employer must convene an inquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her. The enquiry into incapacity is not solely concerned with an employee’s inability to perform their present duties but even if it is the only question, address or evaluate the feasibility or prospect of alternative employment.
[60] The respondent’s witness did not deny that she is unaware of what else the applicant could do or the extent of her qualifications. Although some of the letters of the respondent stated that the provision of alternative work was not an option, it is not clear how that decision was reached and also what alternative work was considered by the employer. Because the applicant did not give away her rights in terms of pre-termination procedures, the respondent should have held an enquiry, even if the decision of the employer would still have been the same.
[61] The courts have often rejected the no difference principle in that the notion that an employee who has been denied the advantages of fair process should be precluded from relief, only because the employer can satisfy the court that objectively the result was the correct one or the result would in any event have been reached.
[62] In consideration of the facts that the respondent investigated the nature and extent of the disability and found it to be permanent; that the applicant even by her own admission could no longer perform her duties in the main stream schools; that in order to be teach in the special schools (deaf-schools) she needed to be fluent in sign language and she was not; that the respondent could no longer pay for sign-language training with Wits because she did not meet its admission requirements and that the applicant had been away from work for three years and six months, it is my finding that the dismissal was substantively fair.
[63] It is my finding that the respondent’s failure to hold a hearing or an enquiry rendered the dismissal to be only procedurally unfair.
[64] On the question of the relief sought, I am guided by the provisions of section 193 of the LRA which provides that the arbitrator must not require the employer to re-instate or re-employ the employee if the dismissal is unfair only because the employer did not follow a fair procedure.
[65] I have considered the period which the applicant has worked for the respondent; that the termination of services was as a result of an unfortunate circumstances and not the applicant’s own doing; the fact that the applicant’s disability was not as a result of an injury on duty; the applicant was paid by the respondent without rendering services for a period of three years and six months and that I have found that the dismissal was substantively fair. I order that the respondent compensates the applicant in the amount of R60622.94 equivalent to 2 month’s salary.
AWARD
[66] The dismissal of the applicant is substantively fair but procedurally unfair.
[67] The respondent is ordered to pay the applicant an amount of R60622.94 (subject to the allowable statutory deductions) in respect of compensation. The said amount must be paid to the applicant’s account numbers wherein she was receiving her salary.
[68] The said amount must be paid on or before the 30 July 2022 failing which the said amount shall bear interest from date of this award to date of payment at the applicable interest rates.
[69] I make no order as to costs
Signed and dated at Pretoria on this 23 day of June 2022
Kuvonakala Chavalala
ELRC Commissioner