Case Number: ELRC 787-24/25 GP
Commissioner: M.A. HAWYES
Date of Award: 5th of March 2025
In the ARBITRATION between
Nkhensani Winny Chauke
(Union/Applicant)
and
Department of Education: Gauteng
(Respondent)
- DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was initially scheduled for arbitration online via Microsoft Teams on the 20th of January 2025.
1.2 The parties requested that the matter be scheduled for two days for an in-person hearing. The matter was subsequently scheduled for the 17th and 18th of February 2025 and finalized on the 18th of February 2025. The arbitration was held at the Gauteng West district office in Florida.
1.3 Mr. Milton Mofokeng, a SADTU union official, represented the Applicant.
1.4 Ms. Thato Morewane, a labour relations officer, represented the First Respondent.
1.5 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 25th of February 2025. The said arguments were timeously received and my award now follows.
1.6 Both parties submitted bundles of documents. The Applicant’s bundle was marked bundle ‘A’. The Respondent’s bundle was marked bundle ‘R’. Detailed notes and a digital recording was kept of the entire arbitration process.
1.7 An interpreter assisted the Applicant in presenting her case at the hearing. - ISSUE IN DISPUTE
Whether the Applicant’s dismissal on the basis of workplace incapacity was substantively fair or not. Procedural fairness is not in dispute. - BACKGROUND TO THE ISSUE
3.1 The Respondent employed the Applicant as a PL 1 educator at Indoni Primary School (Indoni) in the Gauteng West district.
3.2 The Applicant joined the Respondent in a substantive permanent post at Indoni in January 2020.
3.3 The Applicant fractured her hip in an accident at home during 2020. After being hospitalized and treated for the hip fracture the Applicant was tested and it was subsequently discovered that the Applicant was HIV positive.
3.4 The Applicant was booked off ill and when she exhausted her sick leave she applied for and was granted temporary incapacity leave on a number of occasions.
3.5 It is common cause that from the 28th of January 2020 to the 6th of October 2024 (the time of her dismissal for incapacity) the Applicant was granted 442 days paid leave by the Respondent. - SURVEY OF RESPONDENT’S EVIDENCE AND ARGUMENT
4.1 The Respondent led the evidence of one witness, namely the Director for Transformation at the Respondent, Ms. Buyiwe Mabuya.
4.2 Mabuya testified that when an educator is not at school for a minimum of 20 days, they appoint a substitute teacher. The Respondent was thus obliged to pay two educators for one post up until the Applicant’s dismissal.
4.3 The Respondent subsequently referred the Applicant to the Health Risk Manager (HRM) for assessment when it became clear that the Applicant’s condition showed little signs of improving after her long absence from the workplace.
4.4 The Applicant was taken for assessment before a medical panel where she was interviewed on the 13th of February 2024.
4.5 After consideration the panel issued a report that found that the Applicant is totally and permanently disabled for her own position as an educator or any other reasonable alternative employment position within the Respondent.
4.6 Following the report the Respondent issued the Applicant with a pre-termination letter dated the 28th of March 2024 wherein it advised the Applicant that it intended to medically board/afford her ill health retirement with effect from the 31st of August 2024.
4.7 The Applicant was further advised to indicate whether she waived termination procedures and that she should also provide a consent letter agreeing to the Respondent’s findings and medical boarding.
4.8 The Applicant acknowledged receipt of the letter on the 12th of April 2024 but did not provide a waiver letter or agreement to medical boarding.
4.9 The Respondent requested for an incapacity hearing on or about the 25th of May 2024 and the first incapacity hearing date was subsequently scheduled for the 30th of July 2024.
4.10 The Applicant returned to Indoni during July 2024 and commenced working as an educator but with a much-reduced teaching schedule.
4.11 The incapacity hearing was finalized on the 17th of September 2024 and the Applicant was advised of the incapacity chairperson’s finding on or about the 9th of October 2024.
4.12 Mabuya testified that if the Applicant was not given the pre-termination letter, she would still be on sick leave, earning a salary but not providing her contractual educator services to the Respondent.
4.13 Mabuya stated further that it was questionable whether; after receiving the termination letter, the Applicant was now fully functional and able to perform her duties. It was argued further that the Applicant had returned to work in July 2024 because she now faced a potential incapacity enquiry and dismissal for the same reason. All of this would have impacted her continued earning of a salary.
4.14 Mabuya, the Applicant and the Applicant’s witness (Mr. Mmolawa) a departmental head at Indoni, all agreed that the Applicant was back at school but only teaching creative arts. Other educators were responsible for teaching her other classes.
4.15 Mabuya testified that the Applicant was still underutilized and causing undue hardship to the employer.
4.16 When asked under cross examination whether any capacity building was done to assist the Applicant cope with the work environment. Mbuya testified that it was incumbent upon the Applicant to apply for this but she never did.
4.17 Instead, the Applicant was content to sit at home on incapacity leave whilst her absenteeism caused undue hardship at the school.
4.18 Mabuya also testified that as a PL 1 educator, the Respondent’s policies were known or ought to have been known to the Applicant. Mabuya also mentioned that the Applicant’s trade union could also have assisted her in applying for reasonable accommodation if that was what the Applicant really wanted.
4.19 It was argued that by allowing the Applicant to teach only creative arts, this was an example of the Respondent reasonably accommodating the Applicant but the situation was never going to be sustainable and the Respondent had to intervene and apply its incapacity policies. - SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
5.1 The Applicant testified under oath and led the evidence of one witness namely Mr. Mmolawa, a departmental head at Indoni.
5.2 She was employed at Indoni as a PL 1 educator since the beginning of January 2020.
5.3 She teaches natural science, life orientation and creative arts to grade 8 and 9 learners.
5.4 She was performing well until the unfortunate incident (injury) when she fell and fractured her left hip whilst bathing in 2021.
5.5 The Applicant testified that her work included class register control, lesson planning, teaching, assessing, marking and giving the learners feedback.
5.6 She also worked well with colleagues and she was able to maintain discipline in her classroom.
5.7 The Applicant stated that she was diagnosed with HIV in 2021 and she was extremely sick and could not walk as a result she was taken home to Limpopo for her family to take care of her.
5.8 She testified that she was on, inter alia, anti-retroviral (ARV) treatment.
5.9 Her family doctor referred her to Dr Henley (radiologist), Dr Kgoeli ( orthopedic surgeon) and Dr Mathe (physiotherapist).
5.10 Her health condition had been improving since 2024.
5.11 The Applicant contended that when she went to the HRM she was not assessed as she was too frail.
5.12 The Applicant testified that she returned to Indoni on the 9th of July 2024.
5.13 After her return she was able to do her work and followed her timetable as required. She walked around on a single crutch as she was not the first educator to have walked around unassisted in this fashion.
5.14 Her colleagues and learners were happy to have her back.
5.15 She was later taken out of class by a district official who told her she was not fit to work.
5.16 The whole experience had traumatized her. She had suffered from depression ever since as she had been the breadwinner at home.
5.17 She has not received income since October 2024 and she no longer has a medical aid to take care of her illness. She depends on her brother to buy her medication. Also, she has loans and all her policies have lapsed including her funeral cover.
5.18 The Applicant pleaded for her reinstatement as an educator because without it her life would be over.
5.19 The Applicant conceded during cross examination that the process that the Respondent followed was fair and she given an opportunity to consult her doctors.
5.20 The Applicant also agreed that in line with the report of the HRM and the occupational therapist that the Respondent was right in recommending that she be medically boarded. However, her condition had improved and she was fit enough to work.
5.21 It was put to the Applicant that the fact that she was only teaching creative arts showed that she was given a lighter workload and was proof that she was not coping in the workplace. The Applicant disagreed with this contention.
5.22 The Applicant also denied that she only came back to work due to the pre-termination letter that she had received.
5.23 Witness Mr. S.M.S Mmolawa, already referred to above, testified that the Applicant had reported to him as a creative arts PL 1 educator.
5.24 Mmolawa testified that prior to her injury, the Applicant was a good teacher who went to class, submitted as required and never absented herself from work without a valid reason.
5.25 He was informed by the previous principal that the Applicant was injured and will be on protracted leave for an indefinite period. A substitute teacher was appointed on her behalf.
5.26 On her return she had been performing her duties as expected.
5.27 The Applicant had been allocated the subject creative arts as there was a merger with another school, namely Kwa-Mahlobo Secondary School.
5.28 The teaching of creative arts does not require a teacher to do physical exercises. She had been given the same workload in line with policy.
5.29 The witness deposed further that the Applicant moved from class to class to teach the learners and the furthest class was only one hundred meters away.
5.30 He stated that he was sure that the Applicant was doing her work as per school policy as she is required to submit the learners books for control.
5.31 Mmolawa testified that he had never encountered any challenges in working with the Applicant as her immediate supervisor. No colleagues had raised a concern about the Applicant’s condition after her resumption of duties in July 2024.
5.32 It was a somber mood the day the Applicant left the school. - ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 The Respondent bears the onus of proving that the Applicant’s dismissal on the grounds of permanent disability (incapacity) is substantively fair on a balance of probabilities.
6.2 I am confronted with two diagrammatically opposed versions and as such an evaluation of the weight to be attached to each set of versions must be considered.
6.3 The Applicant’s union representative (Mofokeng) asked that the Applicant be dealt with compassion since this is not a dismissal for misconduct. Whilst I agree with Mofokeng’s sentiments this should not be an excuse for neglecting the cold hard facts of the case.
6.4 I find that the Applicant was completely incapacitated by her hip injury in 2021 which appears to have been exacerbated by an undiagnosed and untreated HIV Aids condition.
6.5 After she received treatment for both conditions her slow path to recovery began. There is no doubt that the Applicant needed sick and later incapacity leave and the Respondent, sympathetic to her plight, accommodated her with leave to the point that the Applicant was given a total of 442 days paid leave over a four-year period.
6.6 I find that the Applicant ,regardless of her condition, expected this situation to continue indefinitely and she was quite willing in 2024 to languish at home. The Applicant made no attempt to return to school of her own accord. It was only when she received the pre-termination notice that she hastily made plans to return to school and contended that she was able to work.
6.7 Whatever the Applicant’s motives in this regard I must nonetheless decide whether the Respondent’s decision to dismiss the Applicant for incapacity is justified or not.
6.8 I find that the Applicant was initially contracted to teach learners natural sciences, life orientation and creative arts to grade 8 and 9 learners.
6.9 When she returned to school in July 2024, she was only allocated creative arts. This was a clear attempt on the part of school personnel to accommodate the Applicant for her injury. However, it is not unreasonable for the Respondent to expect the Applicant when she returned to work to work according to the prescripts of her contract. If the Applicant had taught all three of the original subjects that she was allocated and was provided with a level of accommodation by the Respondent, her argument that she was capable of being gainfully employed would have carried more weight.
6.10 If she was able, I would have expected the Applicant to volunteer to teach all three of the original subjects that she was previously responsible to teach. The fact that she did not volunteer to do more and walked with a single crutch is consistent with the argument that she was not capable of doing more and in reality, was not capable of doing enough of what was expected of her.
6.11 I find that the Applicant’s character witness Mmolawa, does not assist in proving that the Applicant was able to continue to perform the employment services that the Respondent expected of her.
6.12 The Respondent provided essentially unchallenged evidence that a panel of experts had examined her and had found that she was totally and permanently disabled for her own job and/or any other reasonable job within the GDE. The panel of experts went further and stated that they recommended that the GDE commence administrative processes for her exit from employment on the basis of ill health.
6.13 The Applicant was given the opportunity to be examined by an occupational therapist of her own choice and other legal professionals. In the Applicant’s OT report at paragraph 8.3.1 (b) and (c) it was stated that:
“ (b) The patient presented with impaired standing, walking and sitting tolerance as well as limitations executing repetitive above shoulder and below level reach action. Symptomology in the finger joints also impacts negatively on her fine motor coordination. These deficits will result in compromise with regards to work speed, efficacy and efficiency.”
“ (c)The Functional Capacity Evaluation results indicated that due to impaired standing tolerance, as well as pain in the hand joints, the patient does not possess the functional capacity to meet all the physical demands as an Educator, presenting lessons to scholars and executing physical exercises.
6.14 The Applicant report then investigated alternative positions such as an appointment in clerical or administrative positions. The report found that the Applicant obtained a below average in work samples requiring a clerical numerical skills and ability to interpret detail of numerically tabulated material or numbers.
6.15 The Applicant’s report gave conflicting information for her to work in clerical or other more base services.
6.16 I find that the Respondent addressed items 10 and 11 of Schedule 8 to the Labour Relations Act, no 66 of 1995 (as amended) (LRA) relating to dismissals involving ill health or injury.
6.17 I find that the Respondent has proven that the Applicant’s incapacity as result of a fractured hip and the effects of HIV Aids has rendered her permanently incapable of performing the full batch of services that she is required to render to make her a full and productive educator in the classroom and around the school. The Applicant earned a professional salary commensurate with those expectations.
6.18 I find that the Respondent has a right to expect the Applicant to work at the higher contractual level contained in her employment contract so that it cannot be accused of treating its employees inconsistently.
6.19 The fact that the Respondent has accommodated the Applicant for so long does not mean that they have created an expectation to continue doing so ad infinitum.
6.20 I find that the fact that the Applicant was off for 442 days on sick and temporary incapacity leave together with the medical reports provide sufficient proof on a balance of probabilities that the Applicant is currently and will always suffer from a permanent disability.
6.21 The Respondent investigated the possibility of securing alternative employment for the Applicant either as a cleaner, grounds woman or appointment into a clerical position. I find that the medical reports indicate that the Applicant would not cope physically or emotionally with work as a cleaner or groundswoman and further that she does not have the aptitude and skills required to immediately move into a clerical position.
6.22 For me these other considerations are all moot because the Applicant testified that she really only wanted reinstatement as an educator with the payment of an educator salary and nothing else.
6.23 I find that the Respondent has complied with the requirements of Item 10 of Schedule 8 to the LRA.
6.24 The Applicant was given a comprehensive incapacity enquiry prior to her dismissal thus meeting the requirements of Item 11 of Schedule 8 to the LRA.
6.25 I find that the Respondent has also discharged the onus of proving that the Applicant’s dismissal for incapacity on the basis of ill health was substantively fair.
AWARD
7.1 The Applicant’s dispute referral is dismissed.
7.2 There is no order as to costs.