ELRC475-22/23GP

ARBITRATION
AWARD

Case Number: ELRC475-22/23GP
Commissioner: Leanne Alexander
Date of Award: 28 March 2024

In the ARBITRATION between:
PSA obo Stanley Morolo
(Applicant)
And
Department of Education (Gauteng)
(Respondent)
And
Applicant’s representative:
Applicant’s address:
Telephone:
Telefax:
Email:
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
Email:


Details of hearing and representation

1. The arbitration took place at Tshwane South District Office (265 Pretorious Street Tshwane) over several days as follows: 19 May 2023, 27 July 2023, 28 July 2023, 29 November 2023, 30 November 2023, 4 December 2023, and 27 February 2024.

2. Mr Martin Mashaba, a Union Official, represented the Applicant. The Applicant, Mr Stanley Morolo, was also present in the proceedings.

3. Mr J Marakalla, represented the Respondent.

4. The proceedings were conducted in English.

5. The Applicant referred a dismissal dispute in terms of Section 191(5)(a) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 21 September 2022. The matter was scheduled for conciliation proceedings on 18 October 2022, the matter subsequently remained unresolved, and a certificate on non-resolution was issued.

6. A ruling was issued by Commissioner Xamasi on 1 March 2023, where it was submitted that “the Council has provisional jurisdiction to adjudicate the matter”.

7. The matter, thereafter, was set down for arbitration proceedings on the above said dates.

8. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.

9. The matter followed an inquisitorial approach.

10. The hearing was digitally recorded, and manual notes were also taken.

11. I must place on record that both parties agreed to submit their closing arguments in writing by the close of business on 11 March 2024. Both of the submissions were duly received and considered.

The issue’s to be decided

12. I have to determine whether the Applicant was dismissed, as alleged. Only once the Applicant is able to establish the existence of a dismissal, does the onus shift to the Respondent to prove the fairness of the dismissal (in terms of section 192 of the LRA). In the event that I find in his favour, the Applicant sought to be retrospectively reinstated.

The background to the dispute

13. It was common cause that the Applicant was employed as a Principal (Seaparankwe Primary School) since 1 May 2017.

14. The Applicant worked a 5-day week, at an average of 8 hours per day.

15. The Applicant earned a monthly salary of R56, 000-00.

16. The Applicant sought retrospective reinstatement.

17. The Applicant alleged that he was dismissed on 31 August 2022.

18. Dismissal was in dispute. Insofar as the substantive issues that were in dispute: the Applicant was not provided with reasonable alternative roles and the termination was not in line with Resolution 7 of 2000. In terms of the procedural issues that were in dispute: the Applicant was not entitled to representation (Union representative) during the reasonable accommodation meeting.
Since dismissal was in dispute, the Applicant bore the onus of proving the substantive fairness.

Summary of evidence and argument

The testimony led by the witnesses is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.
Applicant’s case
Mr Stanley Morolo
19. The witness testified under oath that he was employed as a Principal.

20. The essence of the witness testimony inter alia was that he was unfairly dismissed as his contract was terminated without any due process that was followed.

21. He submitted documentary evidence of a “psychiatrist confidential medical report – Dr ND Magubane” signed on 20 August 2020, where it was recommended that he “should be transferred to another school”.

22. He said that the Respondent did not comply with the “recommendations” of the report and no proof was provided to him wherein it indicated that he was permanently incapacitated. The Respondent also failed to provide him with alternatives (like moving him to another school/environment).

23. He submitted documentary evidence of a “social workers report” from Eunice Mabena-Baloyi, dated 28 August 2020.

24. He said that he had challenges at school with regards to his mental health and the interventions had not yielded any results, hence he relapsed.

25. He said that that the Respondent was aware of his situation as he provided sick notes and completed leave forms.

26. He submitted documentary evidence of an “email” dated 15 September 2022, where it was submitted that he requested to be placed “at a different environment or temporarily placed at the district while waiting for placement was an option”.

27. He said that he was informed by the Respondent that he could not report to the district as he reported to the school.

28. He said that previously a Principal, Mr Ndou, was transferred from Modiri Secondary School to Steve Tshwete.

29. He submitted documentary evidence of an invitation to attend a “reasonable accommodation meeting” on 25 August 2022. The meeting was supposed to have discussed ways to accommodate/adapt his duties.

30. He said that the “reasonable accommodation” meeting took place, however it could not proceed as he was told that the documents had already been submitted.

31. He said that his colleague/friend, Mr Spencer Aphiri, attended the meeting with him, and he was informed at the meeting that Mr Spencer Aphiri, could not participate, but he could not recall the reason(s) why he was not able to participate.

32. He submitted documentary evidence of “Resolution 7 of 2000” and letter for “pre-termination” dated 25 August 2022.

33. He submitted documentary evidence of an “email” dated 25 August 2022, from his Union that was sent to the Respondent.

34. He said that the Respondent failed to comply with “Resolution 7 of 2000” and he should have been placed in an alternative role within 30 (thirty) days.

35. He said that prior to pre-termination procedures, the Respondent ought to have established the incapacity and looked for alternatives.

36. He submitted documentary evidence of a “Determination of Leave of Absence in the Public Service August 2021”.

37. He said that he had never met with Health Risk Manager, nor had he undergone a medical assessment.

38. He said that as per paragraph 15.12 (Bundle A page 91) the Health Risk Manager should have looked for alternatives for him, yet he was not provided with an alternative role.

39. He said that as per paragraph 16.2 (Bundle A page 92) he should have been placed in an alternative role as his incapacity was not permanent in nature.

40. He said that he could still render service and all his medical reports suggested that he could perform an alternative role.

41. He submitted documentary evidence of a “retirement on grounds of continuous ill-health” dated 10 June 2022, and submitted that at that stage he was 55 (fifty-five) years of age.

42. He said that he was now 56 (fifty-six) years of age, and he was not intending to retire, and he felt sad, as he only wanted to retire during 2027.

43. He said that he suffered emotionally and was financially prejudiced, as he was earning around R50, 000-00 now sitting at home he was only earning about R28, 000-00/R29, 000-00.

44. He said that he was still able to teach and manage and he could still contribute towards education in the country.

45. He submitted documentary evidence of a “written agreement to dispense with pre-termination procedures” dated 4 May 2022.

46. He said that the Respondent informed him that if he did not submit a doctor’s letter/medical report within 7 (seven) days they would proceed with pre-termination procedures and that it was impossible for him to obtain such, within the time provided.

47. He said that the Respondent treated him unfairly and bullied him. The Respondent informed him that if he failed to submit, he would suffer financial losses and be prejudiced.

48. He submitted documentary evidence of an “application for temporary incapacity leave long period”.

49. He said that the Respondent had no medical reports, nor any reason(s) to proceed with his incapacity.

50. He submitted documentary evidence of an “application form for ill-health retirement” and the decision he took was not an informed one.

51. He said that the incapacity hearing did not take place, and he was not provided with the minutes from the meeting.

52. He submitted documentary evidence of “Dr ND Magubane’s report” dated 17 January 2023, where it was submitted that “his condition has shown great improvement….an occupational therapist who agreed that he needs to be placed in another school”. He said that if this report was presented to the school, his position would not have been the same.

Point in limine

53. The Applicant’s representative, Mr Mashaba, raised a point in limine regarding “commissioned documentation” as the Applicant could not afford for the medical professionals to be present at the proceedings. Furthermore, it was acceptable in terms of law to submit the document under oath.

54. The Respondent’s representative, Mr Marakalla, submitted that the life span of the documents had expired as it was greater than 6 (six) months and it had not formed part of the pre-arbitration minutes. The persons should avail themselves, as they would need to be cross-examined. Such that, the Respondent was not disputing the medical reports.

55. Both parties agreed that the medical reports would be provisionally accepted pending further submissions in terms of a subpoena, if required.

56. Continuation of Mr Stanley Morolos’s evidence:

57. He said the new documents that were submitted were now commissioned, as the doctors were busy with patients, and it would be costly to bring them to the proceedings.

58. He submitted documentary evidence of a “confidential medical report – Dr ND Magubane” dated 25 July 2023, where it was submitted the doctor said he had recovered.

59. He said that he was in a position whereby he was ready to go back to school.

60. He said that he previously had mental health challenges, he had therapy and consulted with his doctors, and he had now fully recovered after leaving the environment.

61. He submitted documentary evidence of an “erratum on clause 11.2 (s) and 11.3 (c) of the newly approved GDE human resource transfer policy” where it applied to all employees and educators.

62. He said that his personal conditions were not considered by the Respondent, and he was not transferred.

63. He said that he fulfilled the Principal role for a period of 5 (five) years which was at a post level 4.
Under cross-examination (only concessions or significant versions put are recorded

64. The Applicant explained that one of his core functions in his role as Principal was Financial and Human Resources Management. His work-related stressors were due to his relationship with the Deputy Principal, Mr Swafo, the teachers, and the School Governing Body (“SGB”). Furthermore, his role was to resolve conflict.

65. The Applicant explained that he escalated the issue to his Supervisor as he wanted someone neutral to handle the situation.

66. It was put to the Applicant that he had the powers to resolve the conflict.

67. The Applicant conceded to this statement and submitted that he was aware of circular 1 of 2016, and he followed it when trying to resolve the matter, but it was difficult to apply it.

68. It was put to the Applicant that he did not handle the process meticulously in terms of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA), when he had ill-disciplined educators.

69. The Applicant disputed this statement and submitted that the Deputy Principal was able to circumvent the processes.

70. The Applicant explained that the Respondent partially intervened when Employee Relations assisted him.

71. The Applicant explained that the medical reports that he had submitted, he consulted on his own accord, and he became sick during 2019.

72. It was put to the Applicant that from 2019 he could not assist the Respondent gainfully.

73. The Applicant disputed this statement and submitted that he went back to work to perform his duties, however during the period that he was admitted, he could not perform his duties.

74. It was put to the Applicant that since 2019 until 2020, he experienced recurrent depressive disorder and he re-lapsed during 2019, due to stress.

75. The Applicant conceded to this statement.

76. It was put to the Applicant that after he exhausted 36 (thirty-six) days sick leave, he proceeded to temporary incapacity leave and was booked off from 10 January 2022 until 30 June 2022 (6 months) due to “chronic relapsing depression”.

77. The Applicant conceded to this statement.

78. It was put to the Applicant that Dr Magubane’s report corroborated with Dr Mbali-Dhlomo’s report as “medical boarding is recommended as treatment seems not to be working”.

79. The Applicant conceded to this statement.

80. It was put to the Applicant that he submitted the ODI letter, which was later withdrawn, therefore he failed to implement Circular 1 of 2016.

81. The Applicant disputed this statement and submitted that the ODI letter was a situation in order to correct behavior and after he engaged with the Head of Department (“HOD”) it was agreed that he must withdraw the letter and he had to listen to the HOD, therefore he had not failed.

82. The Applicant explained that he did not impose any sanction to the Deputy Principal, Mr Swafo, during his period as a Principal.

83. It was put to the Applicant that for 212 (two hundred and twelve) days he did not report for duty.

84. The Applicant submitted that he could not recall the exact number of days.

85. The Applicant explained that he applied for temporary incapacity leave after exhausting his sick leave, it was granted, and he was paid throughout the period.

86. The Applicant submitted that he was granted 186 (one hundred and eighty-six) days incapacity leave on full pay.

87. It was put to the Applicant that incapacity leave was a privilege and granted at the discretion of the employer.

88. The Applicant disputed this statement and submitted that leave was enshrined in the Constitution.

89. The Applicant explained that he had no choice other than to apply for permanent incapacity leave as the Respondent failed to comply with the recommendations, therefore he did not have another choice other than to apply.

90. It was put to the Applicant that his doctors came to a conclusion that his mental health had not improved, which developed into a major depressive disorder and medical boarding was advised due to his condition.

91. The Applicant conceded to this statement and submitted that his condition did not change as he had the same stressors.

92. The Applicant explained that he had not submitted the Occupational Therapist (“OT”) report, nor had he applied for a transfer.

93. The Applicant explained that the Respondent should have requested the transfer as clearly, they had not read the reports and a transfer could have been initiated.

94. It was put to the Applicant that all of the things like requesting to move back to Hamanskraal (close to his home) amongst others, were against the policy of the Respondent.

95. The Applicant disputed this statement and submitted that they would call a specialist to testify.

96. It was put to the Applicant that in terms of “erratum of clause 11.2 (s) and 11.3 (c) of the newly approved GDE human resource management transfer policy” the person who seeks a transfer ought to apply for it.

97. The Applicant submitted that this policy applied to everyone.

98. It was put to the Applicant that it was improbable for him to move to the district as he couldn’t assist the Department.

99. The Applicant disputed this statement and submitted that it was for a temporary measure and other employees had moved to the district office.

100. It was put to the Applicant that Mr Ndou, was moved to the district office due to misconduct (precautionary transfer) whilst he worked at Mamelodi.

101. The Applicant submitted that he only shared what he was aware of and that made no sense to him.

102. The Applicant explained that he was granted the additional 30 (thirty) days leave in line with 7.5.2 of Resolution 7 of 2000.

103. It was put to the Applicant that Professor Dlomo-Sibiya, disputed the provisions of 16.3 of the policy on the “Determination on Leave of Absence in the Public Service August 2021”, therefore there was no ways that he could have been offered an alternative role, as he was permanently incapacitated.
104. The Applicant conceded to this statement.

105. It was put to the Applicant that he was at a stage where he was not gainfully employed.

106. The Applicant disputed this statement and submitted that he had not met with the Risk Manager in order to agree to that.

107. It was put to the Applicant that his main contention was that Respondent did not accommodate him. They went through the medical reports and medical boarding was the only solution, as he had many impairments and the medical practitioner said that he had to be medically boarded.

108. The Applicant conceded to this statement.

109. It was put to the Applicant that with all of the submissions of the medical certificates he was off for a total period of 15 (fifteen) months.

110. The Applicant did not agree, nor disagree with this statement.

111. The Applicant explained that as per his “medical certificate” he had “chronic depression from 1 July 2022 until 31 August 2022”.

112. It was put to the Applicant that how was it possible for the Respondent to assist the Applicant with his request as his medical reports indicated that he could not perform his duties as he was totally and permanently incapacitated.

113. The Applicant disputed this statement and submitted that he could not recover, as he was placed in the same environment that would not have assisted him with his healing.

114. It was put to the Applicant that at the time of reviewing his situation, his health was worsening when he was on leave.

115. The Applicant conceded to this statement and submitted that his health was deteriorating as the Respondent would not accede to his request, the situation worsened, however after a long time of being at home he recovered, hence he was present.

116. The Applicant explained that he did not submit an OT report from 2019 until 2021 and it was his responsibility to do so.

117. It was put to the Applicant that the Respondent complied with provision 7.5.1. of Resolution 1 of 2000.

118. The Applicant conceded to this statement and submitted that he partially agreed as he received full pay, however the recommendations were not implemented.

119. The Applicant explained that he was not subjected to a disciplinary hearing, and he did not attend an incapacity hearing.

120. The Applicant explained that he authored the letter that he submitted to the Respondent on 4 May 2022, and he agreed to the “pre-termination procedures” as the circumstances necessitated him to proceed.

121. The Applicant explained that he completed the “HR 21” form on 14 July 2022, and he indicated on the form “medical retirement (poor health)”.

122. It was put to the Applicant that his medical certificates were consistent with “chronic relapsing depression”.

123. The Applicant explained that every time that he received medication the milligrams were reduced, therefore he was recovering.

124. It was put to the Applicant that 2 (two) of his medical practitioners confirmed that he was unable to perform his duties.

125. The Applicant conceded to this statement.

126. It was put to the Applicant that he was unable to manage 1 (one) school, where Mr Swafo, was not co-operating with him, yet now he was saying that he could manage 10 (ten) schools at a district level which had more pressure due to the targets.

127. The Applicant disputed this statement and submitted that his move to the district would have been temporary, and he was making an assumption regarding the district office.

128. It was put to the Applicant that there were no transfers for an employee based on depression.

129. The Applicant explained that there was always a first time.

130. The Applicant explained that he was dismissed due to medical retirement (poor health), and he had no choice other than to complete form “HR 21”, as he was pushed into that corner.

131. The Applicant explained that he did not have an incapacity hearing and he applied for ill-health retirement as per his application that he completed on 29 June 2021, which was in support of the “HR 21” form.

132. The Applicant explained that he wrote the letter (pg 11) (Bundle R) to confirm that the Respondent must proceed with pre-termination procedures.
133. It was put to the Applicant that Dr Sibiya’s report indicated that “medical boarding is recommended”. According to him, was he now disputing the medical records.

134. The Applicant disputed this statement and submitted that it indicated “seems” and therefore it was not conclusive.

135. It was put to the Applicant that in his letter (pg 11) (Bundle R) he could not produce an Occupational Therapist (“OT”) report and on 31 August 2022, he was aware that his services had come to an end.

136. The Applicant disputed this statement and submitted that his doctor recommended him to be removed from the environment and after 2 (two) years he was not better.

137. It was put to the Applicant that there was no document declaring that he was medically fit.

138. The Applicant conceded to this statement.

139. The Applicant explained that he could not produce the OT report within 7 (seven) days, and he was not aware that he could have asked for more time.
140. The Applicant explained that he agreed to proceed with his termination due to ill-health, but he was saying that the procedure in terms of incapacity was not followed.

141. The Applicant explained that he signed the “HR 21” form on 14 July 2022, and the reason for his termination was due to “medical retirement/poor health” and the termination date was 31 August 2022.

142. The Applicant explained that he was not subjected to a disciplinary hearing.
143. It was put to the Applicant that he would have been incapacitated if he had submitted an OT report declaring that he was medically fit to perform duties, therefore it would mean an incapacity hearing would be conducted. In his case, he failed to submit an OT report and he agreed to pre-termination procedures. Yet, he still held the view that he was dismissed.

144. The Applicant explained that he was dismissed.
145. It was put to the Applicant that the Health Risk Manager, had all of his reports and they indicated that he was totally and permanently disabled to perform his duties and it was based on the submissions of his treating doctors.
146. The Applicant disputed this statement.

Re-examination
147. During re-examination, the Applicant explained that he was dismissed, furthermore an employee was no longer an employee if permanently incapacitated.
148. During re-examination, the Applicant explained that he wrote the letter (pg 11) (Bundle R) on 4 May 2022, before the “reasonable accommodation” meeting.
149. During re-examination, the Applicant explained that he agreed to medical boarding on 4 May 2022, then he received a letter for “reasonable accommodation” on 16 August 2022.

150. During re-examination, the Applicant explained that during 2021, he was “bad” and would not have been able to stand in this tribunal, however since 2022 he had recovered.
151. During re-examination, the Applicant explained that the employer did not find him an alternative role, adapted his environment, nor certified him as permanently incapacitated.
152. During re-examination, the Applicant explained that he was prompted to write the letter (pg 11) (Bundle R) due to the letter that he received from the Respondent on 22 April 2022.

153. During re-examination, the Applicant explained that he suffered emotional and financial prejudice, due to this matter.
Mr Spencer Aphiri
154. The witness testified under oath that he was employed as Deputy DCES (Special Projects (Tshwane North).
155. The essence of the witness testimony inter alia was that since 2004, he had been responsible for grade 12 learners’ performance.
156. He said that he knew the Applicant as a friend and a colleague.

157. He submitted documentary evidence of the “internal memo” for the “reasonable accommodation” meeting.
158. He said that the Applicant informed him of the meeting that was scheduled for 25 August 2022, and he said to him that it was better if he accompanied him to that meeting.
159. He said that he attended the meeting on 25 August 2022, in the capacity of a colleague and a friend of the Applicant and he was subsequently asked to leave the meeting.

160. He said that the Applicant then informed him that during the meeting they informed him that he could return after 2 (two) years and apply, and they confirmed his termination of employment.
161. He said that the Applicant then engaged and referred the matter to his Union, PSA, and they communicated with the Respondent.
162. He said that the Applicant informed him that he signed the document, therefore the case was closed.
163. He submitted documentary evidence of the “Determination on Leave of Absence in the Public Service”.

164. He said that the Applicant should have been engaged and he was not treated fairly. The Respondent ill-advised him, and then dismissed him.
165. He said that as per the “transfer policy” it applied to all employees and Principals could be transferred to another school. There were a number of cases where that occurred for example, Mr Chauke and Mr Ndou, were both moved.

Under cross-examination (only concessions or significant versions put are recorded
166. The witness explained that the Applicant was strong and fine when he was appointed as a Principal. His health deteriorated, but he could not say when it had deteriorated.

167. The witness explained that when he attended the meeting with the Applicant on 25 August 2022, he went in the capacity of a colleague and a friend, and he was not a Union representative.

168. It was put to the witness that no provision allowed him to accompany the Applicant to the meeting on 25 August 2022.
169. The witness disputed this statement and submitted that he disagreed, until such time it would be read to him, and it suggested otherwise.
170. It was put to the witness that the Applicant could not reasonably perform his duties as a Principal.

171. The witness disputed this statement and submitted that the Applicant wrote a letter on 4 May 2022, and the reasonable accommodation meeting took place on 25 August 2022, where he was invited to the meeting when he had already been terminated and robbed. The meeting that was held on 25 August 2022, was abuse and misleading.

172. It was put to the witness that clause 7.5.2 (b)(i)(ii) of policy was not applicable to the Applicant given the medical conditions that he had.

173. The witness disputed this statement and submitted that the Applicant was never afforded reasonable accommodation.

174. The witness explained that the Applicant explained that he was the under the impression that the Applicant would be given a “cooling off period” for 1/2 years after he had been terminated, and then he could apply again.

175. The witness explained that the Applicant was ill-advised by the Transformation persons who had invited him to those meetings.
176. It was put to the witness that the Applicant was advised by his medical practitioners.
177. The witness disputed this statement.
178. It was put to the witness that as per the Applicant’s doctors’ recommendations he was recommended for “medical boarding”.
179. The witness disputed this statement and submitted that this was the advice from the Professor and doctor, however certain advice had not been considered.
180. It was put to the witness that a school Principal, had high executive demands in order to manage HR, finance and dealing with discipline (management function).
181. The witness conceded to this statement.
182. It was put to the witness that as per the medical reports the Applicant suffered from
“chronic relapsing depression” and was “treatment resistant”.
183. The witness disputed this statement and submitted that the Applicant relapsed because of the working environment, it was not the person but the environment, as the environment was not good for him.

184. It was put to the witness that the Applicant testified that he was in the process of disciplining a staff member, however he did not complete the process, yet he said the matter was referred to employee relations. Therefore, his submissions were ill-informed.
185. The witness disputed this statement and submitted that there were a number of incidents, and they must not be selective.
186. It was put to the witness that the Applicant’s challenges meant that he could not perform his work and how would the department have accommodated him.

187. The witness disputed this statement and submitted that a fundamental step was missed.
188. It was put to the witness that in the meeting that was held on 25 August 2022, he introduced himself as a “friend” and that was why they had excused him.
189. The witness submitted that he wanted the minutes of the meeting.
190. The witness explained that the Applicant had “cognitive impairment”.

191. It was put to the witness that the advice that he received was not “thumb-sucked”, but it was based on medical advice.
192. The witness disputed this statement and submitted that the Applicant was not afforded reasonable accommodation. The information was not “thumb-sucked”, however the conclusion reached was wrong as the foundation was never done correctly.
193. It was put to the witness that the final document, the OT report, needed to be submitted in order to hold office.
194. The witness submitted that he was aware that medical reports ought to have been submitted.

195. It was put to the witness that the precautionary transfers for Mr Ndou and Mr Chauke, were done in terms of Resolution 7 of 2000.
196. The witness submitted that he was aware of the circumstances regarding the transfers, and he saw a person move from school A to school B, however he was not aware of the provisions.

197. The witness explained that the Applicant never applied for a normal transfer.
198. It was put to the witness that anyone at the district office, had certain skills.

199. The witness disputed this statement and submitted that all persons who worked at the district office were not experts.
Re-examination
200. During re-examination, the witness explained that he was not aware of any policy/directive whereby an employee was not allowed to be represented by a fellow colleague.
201. During re-examination, the witness explained that he was not convinced that the Applicant would not be able to perform any duties.
202. During re-examination, the witness explained that the “reasonable accommodation” processes were confusing, as the Applicant informed him about the “termination of his contract”.
203. During re-examination, the witness explained that the Respondent did not “reasonably accommodate” the Applicant.
204. During re-examination, the witness explained that if the Applicant had been moved, he would not have re-lapsed, as he would have been in a different environment.

Respondent’s case
Ms Mavis Buyiswe Mabuya
205. The witness testified under oath that she was employed as a Director – Transformation.
206. The essence of the witness testimony inter alia was that she worked for the Respondent since 1984 and had been in her current role since 2014.
207. She said that her roles included amongst others gender issues for employees, sexual harassment, capacity building, Employment Equity (“EE”) plans, disabilities, and reasonable accommodation for disabilities.

208. She said that the Applicant alleged that he was dismissed. They were guided by Resolution 12 of 1999 and Schedule 1 of EEA and the Applicant was given a termination letter by the Respondent, whether he agreed since his doctor’s recommended medical boarding. The Applicant agreed that the Respondent would carry out termination and if he did not agree, he should have submitted reports and then be exposed to an incapacity hearing.
209. She said that the Applicant applied for medical boarding during June 2021.

210. She said that if the Applicant wanted an alternative placement, he should have put it in writing, applied and received a response.
211. She submitted documentary evidence of a “application for temporary incapacity leave long period” and submitted that the Applicant responded by signing the letter and agreed thereto on 4 May 2022, confirming that “the department can proceed with the termination”.
212. She said that the “pre-termination procedure” was the procedure to follow to advise the employee before they terminate, if the employee agreed it was easy, however, if the employee disagreed, he/she must provide medical reports and OT reports, declaring them “fit” to perform their duties. Thereafter, incapacity followed.

213. She said that the Respondent did not receive any medical reports that the Applicant was “fit” for duty and no supporting reports were submitted.
214. She said that the Health Risk Manager, Dr Nyathi, role was to advise on health issues regarding employees.
215. She submitted documentary evidence of a “retirement on grounds of continuous ill-health” and submitted that the letter would only be written if the employee agreed to be terminated freely, unlike incapacity the chairperson would then decide.

216. She submitted documentary evidence of the “HR 21” form where it was submitted that it was completed when an employee-initiated termination of service and the Applicant’s reason was due to “medical retirement – poor health” that was signed by the Applicant on 14 July 2022.
217. She said that the Applicant was not dismissed, he was discharged (kept benefits) and if he was dismissed a person would only receive what they had contributed to the fund.

218. She said that the Applicant still received benefits, if he was younger than 60 (sixty) years of age he would have had penalties. However, due to ill-health, there would not be any penalties and he would qualify for medical aid/funeral cover.
219. She said that the Applicant was unable to perform his duties and he did not suffer financially. With the Government Pension Fund in terms of ill-health, there were no penalties and therefore he did not suffer financially.

220. She submitted documentary evidence of the “outcome for independent medical assessment”.
221. She submitted documentary evidence of a “medical certificate” where it indicated that the Applicant was “medically boarded on 01/09/22”.
222. She submitted documentary evidence of a “invitation to a reasonable accommodation meeting” that was held on 25 August 2022, and it was a standard letter to reasonably accommodate in order to share policy and procedures.

223. She said that if the Applicant wanted to be placed at the district office, he should have written to the HOD. Furthermore, the Applicant was at a salary level 10, it would be the same as a “Cluster Lead” at the district level, therefore it would not have been possible.
224. She said that there was no transfer policy for Mangers/Principals.

225. She said that the Department was open and transparent with the Applicant throughout the process, and he was taken to the state doctor.
226. She said that the Applicant applied for many temporary leave applications and during June 2021, he applied for ill-health retirement.
227. She submitted documentary evidence of the “ill-health retirement” form and “Determination on leave of absence for Public Service - August 2021”.
228. She said that the Applicant was the initiator of the process, he submitted the medical reports and he agreed to the pre-termination procedure.
229. She said that the Applicant indicated in his “ill-health application” that he could not “lead, teach and learn in the school” and he agreed and consented on 29 June 2021, as per the signed application.

230. She submitted documentary evidence of a “medical report” from Dr Dlomo-Sibiya, where it was submitted that “medical boarding is recommended”, which was submitted by the Applicant’s medical practitioner.
231. She said that the “reasonable accommodation” was limiting you to work, and it was expected that the core of the job would still be performed. The accommodation would be for example flexItime, adjusting the working environment, or the use of devices to assist.
232. She said that the Health Risk Manager, advised the Department that the Applicant was not able to perform his core duties.
233. She submitted documentary evidence of the “Determination on Leave of Absence in the Public Service August 2021” policy and “permanent incapacity leave” was like a “trial”, however if the employee was not working, they must apply for medical boarding.

234. She said that she disagreed with the Applicant’s contention that he was “never certified as permanently disabled but could still render service” as he was diagnosed with “chronic depression” therefore the condition was limiting him to perform his duties.
235. She said that there was an agreement between the Applicant and the Respondent regarding the Applicant’s termination. The Applicant submitted documentation that he could not perform his duties and the Health Risk Manager wrote a letter to the Applicant, therefore they were both aware and agreed thereto.

236. She submitted documentary evidence of “written agreement to dispense with pre-termination procedures”.
237. She said that the Applicant’s doctors’ reports and the state doctor indicated that “he could not perform his duties” therefore it was not true that he could still render service.
238. She said that the Applicant was afforded an opportunity to submit an “OT report” as indicated in the letter that he received. However, there was no need to submit an “OT report” as he agreed to pre-termination. An “OT report” was proof that a person could still function.
239. She said that the Respondent suffered undue hardship, as the Applicant was expected to run the school as such there was instability at the school, wherein the Respondent had to pay for a substitute at the school. The Applicant did not suffer any prejudice, as he was allowed to heal for those years, and he still received his full salary.

240. She said that the Applicant applied for ill-health retirement in accordance with clause 7.5.2 (c) in terms of Resolution 7 of 2000, together with his “LTIL”. Furthermore, the Respondent jumped to “section c” as the Applicant could not work.
241. She said that the “reasonable accommodation” meeting that occurred, Mr Spencer Aphiri, introduced himself as a “friend” and she informed him that he must leave the meeting as they only allowed union representatives. Furthermore, she chaired the meeting.
242. She said that the Applicant and herself participated in the meeting and he was not misled as he was guided by the existing policies.
Under cross-examination (only concessions or significant versions put are recorded)

243. The witness explained that the Respondent did not challenge the Applicant’s medical reports.
244. The witness explained that the state doctor, Dr Fundile Nyathi, did not examine the Applicant, however he examined the documents that were submitted and Dr Fundile Nyathi, was a family doctor and not a specialist, therefore he could not examine him.
245. The witness explained that the Applicant was “discharged” as a dismissal would not mean any benefits.
246. It was put to the witness that the Applicant was dismissed based on an illness and she could not say that he was discharged based on the PSA.
247. The witness conceded to this statement.

248. The witness explained that the “transfer policy” did not cover senior employees and a Principal could not be transferred to any post in the district (any promotional post would not be covered).
249. The witness explained that in terms of the “transfer policy” they would look at transfers for “concomitant posts”.
250. It was put to the witness that the request from Dr Moratiou “was a request to be transferred to head office”, therefore it was a request for reasonable accommodation.

251. The witness disputed this statement and submitted that there was a difference between alternative placement and reasonable accommodation, if it was reasonable accommodation, a person must still be able to do their core function and they are supported in a way.
252. The witness explained that a “reasonable accommodation” meeting was for employees who had a disability, they had an obligation to employ, but one must be mindful of when they attended that meeting with the Applicant, he was about to exit. They explained to the Applicant that they had to build capacity and they informed him should he recover, he could come back and apply, and the state doctor would look at his condition.

253. The witness explained that a “reasonable accommodation” meeting did not yield employment, the aim of the meeting was to assist and consult in order to get the facts. It was a consultative meeting and in the meeting the Applicant raised concerns, however she could not change anything as the Applicant’s exit date was 31 August 2022.
254. The witness explained that she was shocked that they invited a person who was going to exit, if her office knew that the Applicant was going to exit, he would not have been invited, as it was wasting his time.

255. The witness explained that she excused Mr Spencer Aphiri, during the meeting as she did not allow “friends” in her meetings.
256. It was put to the witness that the procedure for permanent ill-health, you need to offer reasonable accommodation/adapt duties. Before the Respondent can terminate the doctor must declare.
257. The witness explained that the state doctor must declare it as a “permanent incapacity”, however in this case it was not declared.
258. The witness explained that the Applicant could have submitted a grievance with regards to the social workers report, as his Supervisor appeared not to have addressed it.

259. It was put to the witness with the Applicant’s emails that he sent on 4 October 2020 and 17 December 2022, he was reaching out and he had not stopped engaging with the Respondent.
260. The witness did not respond to this version.
261. It was put to the witness that all of the documents that the Applicant had signed he did not do so voluntarily, due to his condition he had no assistance and therefore he did not sign willingly.

262. The witness disputed this statement and submitted that signing was very serious, the Applicant was employed at a very high level and was well aware of the policy and procedures therefore he signed knowingly.
263. It was put to the witness that the Applicant only signed as he had to do something, he did not want to, but it was his last option.
264. The witness disputed this statement and submitted that if IDSO/wellness was not helping, the Applicant could have approached labour or escalated it to the HOD. He could have also approached the Public Protector/Legal as alternative avenues in order to assist.
265. It was put to the witness that the Applicant was under the impression that the meeting that was held on 25 August 2022, was to reasonably accommodate him.

266. The witness disputed this statement and submitted that the Applicant was a Principal, and he signed the pre-termination letter, and she had difficulty to believe that the Applicant was expecting that the meeting was going to address his placement. The only person that could have changed the “HR 21” form that the Applicant had signed was the HOD. How could the Applicant have thought that transformation could have changed that.
267. It was put to the witness that the Applicant’s health practitioners made it clear that if he was left at the school, he would return to Vista Clinic. Due to the Applicant’s health conditions he had no other option other than to agree, but he was not willing.

268. The witness disputed this statement and explained that when a person transfers the post must be vacant and substantive at salary level 10 (dependent on the earnings and the size of the school). If the Applicant was transferred to the district, he must have had the knowledge/skills to transfer. The Applicant’s skills could not be used at district level, nor his “mentoring skills” these were not used at the district office.

269. It was put to the witness that the Respondent must first assess before an alternative appointment. The Respondent failed to do that.
270. The witness conceded to this statement and submitted that the Respondent did not do that, the Health Risk Manager agreed. For an alternative placement, it must have been vacant and substantive, and the person must have had the skills. Based on the Health Risk Manager, the “permanent incapacity” was not done as the Applicant was permanently incapacitated.

271. The witness explained that the “medical report” was signed on 11 July 2023, after the Applicant had already exited from the system.
272. It was put to the witness that as per the report on 25 July 2023, the Applicant had improved, and he could now perform his job.
273. The witness explained that the report indicated such, but the Applicant would be required to be re-tested.

Re-examination
274. During re-examination, the witness explained that the medical report dated 11 July 2023, was never presented to her and it was submitted after the Applicant had exited. Furthermore, the report was a confidential medical report and not an OT report, therefore it would not have assisted the Respondent.
275. During re-examination, the witness explained that the Applicant was not coerced to sign the pre-termination forms.
276. During re-examination, the witness explained that the Applicant had not submitted a grievance, nor had he applied for a transfer.
277. During re-examination, the witness explained that that Health Risk Manager, advised the Respondent and the Applicant was supported through the Wellness Unit.

278. During re-examination, the witness explained that after the Applicant submitted an “HR 21” form he had not submitted an application for a withdrawal.
Mr Thabiso Mphosi
279. The witness testified under oath that he was employed as an Assistant Director – HR provisions.
280. The essence of the witness testimony inter alia was that he worked for the Respondent at the Tshwane South District Office since 2011, and his role included being the custodian for all posts including recruitment, transfers, and conversions.

281. He said that he had no knowledge that the Applicant was supposed to be transferred to Hamanskraal, furthermore their office had not received such a request and the Applicant was based in Mpumalanga and he was never based in Hamanskraal.
282. He said that the Applicant bore the onus as an initiator when requesting a transfer.
283. He submitted documentary evidence of the “transfer policy”.

284. He said that a “single transfer” occurred when an employee sought a transfer to another school with a motivation, the employee must negotiate with both of the schools and it must be approved by the DOA. A “cross-transfer” when 2 (two) persons were requesting a transfer and they exchanged posts, however the process remained the same. It must be approved by both of the manager’s and DOA.
285. He said that the “transfer policy” for PL1 to PL4 levels, and not everyone was eligible for transfer, however the policy did not allow for a Principal if he was appointed on a promotional post. They did not transfer persons from one promotional post to another promotional post.
286. He said that the policy stipulated that all Educators were covered, but on promotional posts there must be certain circumstances and consultation is required including a motivation from the District Director.

287. He said that for a transfer to be initiated the initiator needs to initiate it, and it was dependent on the size of the school (grade 1 – 5). The Applicant was on “P3”, and he could not be transferred to “P4” which was dependent on the size of the school/salary of the Principal.
288. He said that the Applicant could not be transferred to the district office, as there were no concomitant posts and he could not be transferred to a promotional post, as he had not been interviewed.

289. He said that Mr Ndou was not transferred to the district office. It occurred in certain circumstances, for example with a precautionary transfer. However, in Mr Ndou’s case he was moved to a certain school and Mr Chauke was moved from a secondary school to a primary school due to under performance, the Respondent had to assist the particular schools.

Under cross-examination (only concessions or significant versions put are recorded
290. It was put to the witness that the “Transfer policy” was applicable to the Applicant.
291. The witness disputed this statement and submitted that it has provisions for “PL1” posts and promotional posts, it was not applicable for transfers. Promotional posts would not be allowed.
292. The witness explained that in the cases of Mr Ndou and Mr Chauke, it was not initiated by those particular employees, it was not a transfer it was re-deployment.

293. It was put to the witness that Mr Chauke, did not submit an application from one school to another like the Applicant, but the Respondent was able to see Mr Chauke’s circumstances and then move him accordingly.
294. The witness disputed this statement and submitted that the matter regarding Mr Chauke was not from his side, the movement was implemented by the Respondent. The Applicant’s case was different, he was not fit to perform his duties and there was a difference between the two matters.
295. It was put to the witness that the Respondent did not treat the Applicant like other employees. They were aware of the recommendations for alternative roles.

296. The witness conceded to this statement and submitted that the situations were different as the Applicant’s health contributed to him being unable to perform and he could not manage the school, whereas Mr Chauke was fit enough. If they moved the Applicant to another school he would still move with the same condition, he may relapse, and every school had their own challenges and dynamics.
297. The witness explained that they checked the grading first if they were the same. Some gradings differed and yet some “P4” gradings were the same in both primary and secondary schools.

298. The witness explained that the Applicant’s dismissal claim was not unfair as the Applicant did not initiate and look for a post at Hamanskraal. He never received any documentation requesting a transfer from the Applicant.

Re-examination
299. During re-examination, the witness explained that the Applicant’s email dated 15 September 2022, was not an application for a transfer it must be an official document that would have been signed. The email was just information sharing.
300. During re-examination, the witness explained that his office never received a formal application from the Applicant.
Mr Aubrey Mushuwanyi

301. The witness testified under oath that he was employed by the Respondent as a Senior Personnel Officer.
302. The essence of the witness testimony inter alia was that he worked at the Tshwane South District Office for the past 7 (seven) years and his role included receiving incapacity leave, verifying the records (medical certificates) for PILLAR applications and then they were sent to Head Office.
303. He said that the Applicant applied for incapacity leave and medical boarding (ill health retirement).
304. He said that his role in relation to the Applicant’s case was that he performed the administrative function when dealing with the Applicant’s application.
305. He submitted documentary evidence of the Applicant’s application form “Annexure E”.

306. He said that the Applicant was not dismissed unfairly, as he completed “Annexure E” as he was the one that applied for medical boarding.
307. He said that Applicant signed his application on 29 June 2021, he received additional medical reports that supported the application, and his application was subsequently approved.

308. He submitted documentary evidence of the “invitation to attend the reasonable accommodation meeting” where it was submitted that the Director, Ms Mabuya, the Applicant and himself were present in that meeting.
309. He said that during the meeting the Applicant arrived with Mr Spencer Aphiri, and he was asked to excuse himself as he represented himself as “friend” and you need to be a Union representative or a Supervisor. The Applicant did not bring his Union with him as indicated on the invitation.

Under cross-examination (only concessions or significant versions put are recorded
310. It was put to the witness that incapacity falls under a dismissal in accordance with the PSA.
311. The witness conceded to this statement.
312. The witness explained that his role was only to perform an administrative function and to ensure that the tick list was complied with, he did not read the medical reports he just checked if they were valid.

313. It was put to the witness that it was their version that the Applicant’s matter was not investigated as the Respondent did not consider the transfer request and if the Health Risk Manager had investigated such, he would have been aware.
314. The witness did not provide any comments.
315. The witness explained that the “reasonable accommodation meeting” was addressed, however it was late as the Director was not aware that the Applicant’s last day was on 31 August 2022. The Applicant applied for ill-health which was a different matter and either the Applicant or his Supervisor, would have requested “reasonable accommodation”.

316. It was put to the witness that any person/colleague could have sat and joined the meeting of reasonable accommodation, the Director provided him with the incorrect information.
317. The witness did not provide any comments.
318. It was put to the witness that Mr Spencer Aphiri, said in the meeting that “he was a friend and colleague”.
319. The witness disputed this statement.
Re-examination
320. During re-examination, the witness explained that Mr Spencer Aphiri, introduced himself as a “friend”.
321. During re-examination, the witness explained that the Applicant’s matter was investigated by the Health Risk Manager.
322. During re-examination, the witness explained that the Applicant applied for “Annexure E” and if he agreed he would need to send supporting documents. The reasonable accommodation came after it had been agreed upon. Furthermore, the Applicant agreed to dispense with pre-termination.

Analysis of evidence and argument

323. The Applicant carried the onus to establish the existence of a dismissal.
324. The provisions of section 192(1) of the LRA provides that:
The Onus in Dismissal Disputes:
(1)” In any proceedings concerning any dismissal, the employee must establish the
existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must prove that the
dismissal is fair”.

325. I was required to determine and make a finding whether the Applicant was “dismissed as stipulated in terms of section 186(1)(a) of the LRA – “Dismissal means that – (a) an employer has terminated a contract of employment with or without notice.”
326. ‘What is dismissal?’

In the authoritative publication by Dr. J Grogan ‘Workplace Law’ 10 th ed. 144-146, the learned author observes “that a dismissal takes place when a contract is terminated at the instance of the employer and entails some communication by the employer to the employee that the contract has come to an end. This message can be communicated in words or by conduct, for example, when the employer indicates that the employee will no longer be paid.”
According to Grogan “cases frequently arise in which the employee claims to have been
dismissed, but the employer claims that the employee resigned or abandoned employment
voluntarily and that this had been accepted by the employer”.
[See: Ouwerhoud v Houtbay Fishing Industries (2004) 25 ILJ 731 (LC)].
In Ouwerhoud Van Niekerk J held that in such circumstances the employee is required to prove “some overt (obvious) act by the employer that is the proximate cause of the termination of employment”. [At para [15]].

According to Grogan on 146 and by reference to South African Broadcasting Corporation v CCMA & Amp; Others (2002) 23 ILJ 1549 (LAC) held: “when an employee abandons work and at no time tender service, or if the employee has formed a fixed intention not to resume employment before the employer accepts the repudiation, it is the employee, not the employer, who has terminated the contract”.

327. It was the Applicant’s contention that he was dismissed, and the Respondent failed to comply with the incapacity process/reasonable accommodation.
328. It was the Respondent’s contention that the Applicant was not dismissed, as he applied for ill-health retirement and agreed to pre-termination procedures on his own accord.

329. I must place on record that much evidence was led during the proceedings; however, I am mindful what was in dispute as per the signed pre-arbitration minutes that were signed by both parties on 19 May 2023. The following factors were in dispute: “the Applicant challenges the procedural and substantive fairness and reason for the department to discharge the Applicant and the employer contends that the discharge of the Applicant was procedurally and substantively fair. The dismissal is in dispute and if it is found to so, whether or not the dismissal was fair based on incapacity”. Furthermore, “procedural issue – the alleged reasonable accommodation meeting without the union representative or fellow employee” and the “substantive issue – the respondent failed to provide a reasonable alternative duties or roles; his termination was not in line with Resolution no. 7 of 2000, determination and directives of leave of absence in the public service August 2021 and Schedule 8 (10) of the Labour Relations Act.”

330. The following facts were common cause:
>The Applicant signed and submitted the ill-health retirement form (Annexure E) on 29 June 2021.
>The Applicant signed and submitted a “HR 21” form on 14 July 2022.
>The Applicant applied for “temporary incapacity leave” for the period 2021-05-25 – 2021-12-15, and it was approved as per the correspondence he received on 22 April 2022.

>A “reasonable accommodation” meeting took place on 25 August 2022.
>The Applicant’s termination date was on 31 August 2022.

331. The Applicant was found to be a reliable witness, although at times he appeared to be evasive.

332. The Applicant’s witness, Mr Spencer Aphiri, was found to be an unreliable witness, at times his versions appeared to be evasive. He also appeared to be argumentative at times.

333. The Applicant conceded during cross-examination that he was not “dismissed for misconduct”, nor subjected to a “disciplinary hearing”.
334. The Applicant furthermore conceded during cross-examination that he signed the “HR 21” form on 14 July 2022. He furthermore conceded that he signed the “ill-health retirement form” on 30 July 2021, and “Part B” on 29 June 2021.

335. Much evidence was led by the Applicant, in terms of the various medical certificates including a medical certificate from “Dr ND Magubane” for the period from “10 January 2022 until 30 June 2022”. A further medical certificate from “Dr ND Magubane” for the period from “1 July 2022 until 31 August 2022”.

336. I must place on record that neither the Applicant, nor the Respondent, called the respective witnesses to testify with regards to the “medical reports/medical certificates” that were duly submitted, such that they shall be considered as hearsay evidence.
337. With the evidence before me, the “PHS” medical assessment report dated 17 September 2021, from Dr F Nyathi, indicated that “based on the information above, PHS is of the opinion that Mr Morolo is totally and permanently disabled to perform duties of his occupation (even with adjustments) or any alternative occupation within the Gauteng Department of Education and/or any other department within the Public Sector. PHS is further of the opinion that Mr Morolo does qualify for ill-health retirement benefits”.

338. With the evidence before me, the Respondent issued a letter to the Applicant on 22 April 2022, where it indicated that “based on the assessment report; the Department is of the view that your medical conditions renders you totally and permanently incapacitated to perform your own duties (even with adjustments) or any other alternative occupation within the Department of Education and/or any other Department in the Public Service”. “Given your medical condition the Department, with your agreement, intends to dispense with pre-termination procedures as provided by the Public Service Act of 1994, read with resolution 12 of 1999 any amendments thereto”.

339. With the evidence before me, the Respondent then informed the Applicant in the same letter dated 22 April 2022, that “you are advised to state as to whether the employer should dispense with pre-termination procedures within 5 working days of this letter. By completing page 2 of this letter, in addition to the above written agreement is required. Failure to respond within the stipulated time, the employer will proceed with conducting the incapacity hearing. Your response should be addressed to the Deputy Director: Human Resources Transversal Services at your district office”.
340. It was not disputed that the Applicant signed the letter on 4 May 2022, wherein he indicated “I Stanley Phala Morolo agree with paragraph 3 of this letter. The department can proceed with the termination of my employment contract on account of ill-health”.

341. It was furthermore not disputed that the Applicant than submitted a letter to the Deputy Director (Human Resource Transversal Services) on 4 May 2022, wherein he indicated that “in the absence of assessment report from the treating doctor and the Occupational Therapist, I Stanley Phale Morolo 90213793 therefore agreed to proceed with medical boarding. Furthermore, I agree that the Department can proceed with pre-termination procedures as provided by Public Service Act of 1999 read with Resolution 12 of 1999. The Department can process with termination of my employment contract on account of ill-health”.

342. The Applicant conceded during cross-examination that he had not submitted an “OT report”, as requested in the letter submitted to him from the Respondent on 22 April 2022. Furthermore, during cross-examination the Applicant conceded that it was “his responsibility to obtain the OT report”.

343. It was the Applicant’s contention that 7 (seven) days was insufficient in order to obtain the “OT report”, however the Applicant conceded during cross-examination that he failed to ask for an extension in order to submit the required report.

344. It was not disputed that the Applicant received further correspondence from the Respondent dated 10 June 2022, where it indicated that “I wish to inform you that based on all available information that your ill-health retirement has been granted in terms of Employment of Educators Act of 1998 and any amendment thereto.” “This letter therefore serves as an official notice of your ill-health retirement and your last date of service will be the 31 August 2022”.

345. It was furthermore the Applicant’s case that he signed the “ill-health retirement form and HR 21 form” under “duress”. I take note that this contention did not form part of the pre-arbitration minutes, furthermore the parties are bound by such. Even if that was the case, in any event the ELRC would not have jurisdiction.

346. Much evidence was led in terms of the “reasonable accommodation” meeting that took place on 25 August 2022. With the evidence before me, the Respondent’s witness, Ms Mavis Buyiswe Mabuya, submitted in her evidence in chief that in that meeting “the core of the job would still need to be performed” and the Health Risk Manager, advised “that the Applicant was unable to perform his duties”. The witness conceded during cross-examination that “she was shocked that they invited a person who was going to exit, if her office knew that he was going to exit he would not have been invited, as it was wasting his time”.

347. With the evidence before, me whilst it was not disputed that the “reasonable accommodation meeting” took place on 25 August 2022, it was rather peculiar on the Respondent’s part to have initiated the meeting in the first place, as the Applicant had already agreed to pre-termination procedures.

348. With the evidence before me, the Applicant submitted a “medical report” from Dr ND Magubane, dated 25 July 2023, where it indicated that “Mr Morolo shows great signs of improvement…and he is only 55 years old and can still work”. However, this report was submitted after the Applicant exited on 31 August 2022. The Respondent’s witness, Mr Mavis Buyiswe Mabuya, submitted that she had not been privy to the report at the time that the Applicant exited.

349. Resolution no 7 of 2000 provides that:

7.5.2 “Employees whose degree of disability has been certified as permanent shall, with the approval of the employer, be granted a maximum of 30 working days paid sick leave, or such additional number of days required by the employer to finalise the process set out in (b) and (c) below.
(b) The employer shall, within 30 working days, ascertain the feasibility of:
(i) alternative employment; or
(ii) adapting duties or work circumstances to accommodate the disability.
(c) If both the employer and the employee are convinced that the employee will never be able to perform any type of duties at his or her level or rank, the employee shall proceed with application for ill-health benefits in terms of the Pension Law of 1996”.

350. With the evidence before me, the Applicant conceded during cross-examination that he had no medical report “declaring him fit for duty”.

351. With the evidence before me, the Respondent’s witness, Ms Mabuya, testified in her evidence in chief that the Applicant “applied for ill-health retirement in accordance with clause 7.5.2 (c) in terms of Resolution 7 of 2000, together with his “LTIL”. Furthermore, the Respondent jumped to “section c” as the Applicant could not work”.

352. In the case of Enforce Security Group v Fikile and Others (DA24/15) [2017] (LAC) the Court held that “the question of whether the dismissal exists determines whether the CCMA and Labour Court will have jurisdiction to entertain the dispute. Any finding in a dismissal dispute that there was no dismissal means that the CCMA and, therefore, the Labour Court will not have the jurisdiction to adjudicate the dispute”.

353. In the case of Mnguti v CCMA and Others [2015] ZALCJHB 277; (2015) 36 ILJ 3111 (LC) the Court held that “the issue whether or not a dismissal exists concerns the jurisdiction of the CCMA. If there is no dismissal, then the CCMA has no jurisdiction to entertain an unfair dismissal claim. Where a commissioner thus finds that no dismissal exists, that Commissioner in essence determines that the CCMA does not have jurisdiction and the matter”.

354. In the case of South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others (CA10/2005) [2008] (LAC) the Court held that “the issue that was before the Commissioner was whether there had been a dismissal or not. This was an issue regarding the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal is determining whether the CCMA had the jurisdiction to entertain the dispute. It follows that if there was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in terms of Section 191 of the LRA”.

355. It is therefore my finding that the Applicant agreed to “pre-termination procedures” on account of his ill-health. The Applicant in his correspondence dated 4 May 2022, indicated that “in the absence of assessment report from the treating doctor and the Occupational Therapist I Stanley Phale Morolo 90213793 therefore agreed to proceed with medical boarding”. He further signed the “ill-health retirement application form” (Annexure E) on 29 June 2021.

356. I therefore find that there was an agreement between the parties and the Applicant agreed to be discharged due to “ill-health retirement” and thus would still qualify for certain benefits.

357. In these circumstances I find that the Applicant failed to discharge his onus that he was dismissed.

358. Therefore, the ELRC would not have jurisdiction to pronounce on the fairness thereof.

Award

359. The Applicant was not dismissed.

360. The ELRC is hereby ordered to close the file.

Thus, signed and dated on the 28 March 2024.

Leanne Alexander
ELRC Panelist