01 June 2026 – ELRC332-25/26KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

Case No: ELRC 332-25/26KZN

In the matter between:

Vikimpi Samuel Sibiya Applicant

And

Department of Basic Education – KwaZulu Natal Respondent

Arbitration Award

Details of Hearing and Representation

This case was finally set down before me for an arbitration hearing on 16 April 2026 online on MS Teams. The applicant Mr Sibiya was represented by Mr Zondi, an attorney. The respondent, The Department of Basic Education: KwaZulu Natal, was represented by Mr Makwanazi, an Acting Deputy Director HRM of the respondent.

Issue to be Decided

The issue to be decided is whether the dismissal of the applicant Mr Sibiya by the Department of Basic Education: KwaZulu Natal was substantively and procedurally fair.

Background to the Dispute

The applicant was employed as an educator by the respondent. The applicant was dismissed by the respondent on 16 April 2025. He referred a dispute to the Education Labour Relations Council (the ELRC).
The applicant’s principal had written to the respondent indicating that the applicant had been medically unfit for duty. A process that led to the applicant having been found to be permanently incapacitated to work due to ill health was followed, and the applicant was advised in writing that his services had been discharged due to ill health.
The applicant’s case is that he had neither requested nor indicated that he had wanted to apply to be declared medically incapacitated. The process was forced upon him and in any event, had been flawed in several respects.
The applicant did not receive any monthly payment following the conclusion of the process.
The matter was set down for a jurisdictional hearing on 17 November 2025. A ruling was given on 9 December 2025 stating that ELRC had jurisdiction to entertain the dispute as an alleged unfair dismissal for medical incapacity.
The matter was finally set down before me on 16 April 2026.

Survey of Evidence and Argument

Ms Lindiwe Magwaza, the Senior Human Resources Manager of the respondent testified on behalf of the respondent. She testified that part of her duties were to process the payment of pension benefits.
Ms Magwaza testified that she received a letter from the Leave Section Department that Mr Sibiya had been medically boarded. She had to explain the process of pension benefits to Mr Sibiya and present him with the necessary forms to fill in.
Ms Magwaza testified that the applicant insisted that he would complete and submit the forms himself. These forms have not been submitted to date.
Under cross-examination, Ms Magwaza explained that ill-health retirement is the same as a normal retirement and as a result, all benefits due to the employee are paid out in accordance with a normal retirement.
When asked what had triggered the medical boarding of the applicant, Ms Magwaza referred to page 22 of the respondent’s bundle. The document stated that the applicant had suffered a stroke and is at risk of getting another stroke if he fails to control his blood pressure (BP). As a result, he is unable to perform his normal duties as an educator. She also highlighted more documents on pages 27, 30, 35, 36, 41, 42, 43 and 47 to further clarify the applicant’s condition.
When asked about the dismissal, Ms Magwaza emphasised that she was not aware of a dismissal as it was an ill-health retirement.
With regard to Alexandra Forbes, Ms Magwaza stated that Alexandra Forbes is an agent designated to assess and provide an outcome for temporary incapacity leave applications on behalf of the respondent. She stated that she is unaware of the process adopted by Alex Forbes in determining the outcomes of their reports and that Alex Forbes does not consult with individuals, but only assess information provided to them by their doctors. Therefore, Alex Forbes did not have to consult with the applicant.
The applicant also testified. He testified that he was unwell from September 2022. He returned to work in August 2023 after being declared medically fit to resume work by a medical practitioner. He testified that he worked until the end of the year 2023 without falling ill. He also worked right through the year 2024 without any health problems.
The applicant testified that he was not ill at the time of receiving the medical boarding letter and neither had he applied to be medically boarded. He received the letter whilst at work performing his duties. He stated that the school principal had not consulted him when he wrote and submitted the letter to have him medically boarded by the respondent. Furthermore, there was no medical examination conducted on him by a medical practitioner provided for by the respondent. Payment of his salary was stopped thereafter. The applicant testified that he felt harassed by the respondent in this regard.
Under cross-examination, the witness testified that he had been an educator for more than ten years.
The applicant stated that he did not have in-depth knowledge of the contents of the Employment of Educator’s Act as well as the duties of a principal. However, he understands that the principal should have consult with him first before submitting the letter requesting that the applicant be medically boarded.
When asked whether he had ever been diagnosed with a stroke, the applicant’s response was negative.
The representatives agreed to submit written closing arguments.
I shall refer to the written closing arguments where applicable below.

Evaluation of Evidence and Argument

It is common cause that the applicant had fallen ill and had been placed on temporary ill-health incapacity as per the medical reports contained in the respondent’s bundle. It is also common cause that when the applicant was informed of the termination of his services, the applicant was at work performing his duties. The documents relied on by the respondent only refer to temporary incapacity and the respondent has not provided any evidence pointing to the applicant’s permanent incapacity.
Schedule 1 of the Employment of Educator’s Act 76 of 1998 (the Act), Schedule 1 Procedures in respect of ill health or injury, the Act states:
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.
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.
(a) Subject to section 7 of the Employment Equity Act, 1998 (Act 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.
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.
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.
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.
In the absence of evidence adduced by the respondent, it is apparent that the requirements referred to above were not complied with. The principal of the school wrote a letter to the respondent referred to on page 14 of the respondent’s bundle without following due process as envisaged by Schedule 1 of the Act. The respondent did not make reference to this process being adhered to concluding that the applicant must be medically boarded.
With regard to substantive fairness, it is uncontested that the applicant had worked from August 2023 until the date of discharge without taking any sick leave. The respondent has not provided any evidence from a medical practitioner in the form of a medical report to place the applicant on incapacity due to ill-health. The respondent relied on a medical report submitted by the applicant himself which only placed the applicant on temporary incapacity for a fixed duration.
There is no mention of a performance evaluation by the principal or the respondent to make an informed decision with regard to the permanent incapacity of the applicant.
In NUM and another v Libanon Gold Mining Co Ltd (1994) 15 ILJ 585 (LAC), the employer failed to consult properly with the employee prior to the dismissal and the dismissal was therefore held to have been unfair. The Court held that 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.
The dismissal was accordingly procedurally and substantively unfair.

AWARD

The dismissal of the applicant, Mr Vikimpi Samuel Sibiya was both substantively and procedurally unfair.
The respondent, the Department of Basic Education-KwaZulu Natal is ordered to reinstate the applicant, Mr Vikimpi Samuel Sibiya with effect from the date that his salary had been stopped by the respondent.

Award

The dismissal of the Applicant, Mr Vikimpi Samuel Sibiya was substantially and procedurally unfair.
I hereby order the Respondent, the KZN Department of Education, to reinstate the Applicant in his position of Educator of at Isivunguvungu Secondary School by no later than 15 June 2026 , on the same terms and conditions of employment that existed immediately prior to his unfair dismissal, and without loss of any remuneration and benefits that would have accrued to him but for the dismissal.
The said reinstatement shall have a retrospective operation from the date of the Applicant’s dismissal, which is 1 June 2025.
The Respondent is ordered to pay to the Applicant his full salary for the period between the date of dismissal (or when his salary payment was stopped), that is 1 June 2025 and the date of reinstatement, that is 15 June 2026 by no later than 30 June 2026.
The amount that must be paid to the Applicant is calculated in terms of the provisions of section 35 of the Basic Conditions of Employment Act, no. 75 of 1997, as follows:
• R 410 169,60 per annum ÷ 12 = R34 180,80 per month x 12 months [from June 2025 to May 2026) = R410 169,60.
• Total amount payable to the Applicant is R410 169,60 (four hundred and ten thousand, one hundred and sixty-nine Rand and sixty cents.), minus such deductions as the Respondent is in terms of the law or agreement with the Applicant entitled or obliged to make.
(this amount was calculated until the end of May 2026, and the applicant must be paid the full salary in June 2026).
The Applicant shall report for duty by no later than 15 June 2026.