IN THE ELRC ARBITRATION
BETWEEN:

SADTU obo Mphokane, Nomvula Applicant
and
The Department of Education: Gauteng Province Respondent

ARBITRATION AWARD

CASE NUMBER: ELRC705-24/25GP
ARBITRATION DATE: 27 January 2025, 24-25 February 2025, 24-25 March 2025, 26 and 27 May 2025
DATE OF THE AWARD: 03 July 2025
ELRC Arbitrator: Pitsi Maitsha

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. On January 27, 2025, an arbitration hearing was held on MS Teams, which was partly conducted. The arbitration continued from February 24 to 25, 2025, March 24 to 25, 2025, and concluded on May 26-27, 2025. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995, as amended, “The Act.” The award is issued in terms of section 138(7) of “The LRA.”
2. The applicant is Nomvula. She was in attendance and was represented by Ms Peksie Jafta, the union official from SADTU. The respondent is the Department of Education: Limpopo Province, and was represented by Dr. Mogaba Tsebe, the Labour Relations Officer.
3. The parties gave the evidence under oath. The proceedings were held on MS Teams. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

4. I am required to determine whether the dismissal of the applicant was substantively and procedurally unfair. If so, make an appropriate award.

BACKGROUND DETAILS

5. The parties held a pre-arbitration meeting on 21 November 2025 and agreed on the following in terms of the Pre-Arbitration Minutes:
6. In terms of common cause facts:
   6.1.1 The respondent has employed the applicant in the capacity of Post Level 2 Educator.
   6.1.2 The applicant was terminated on 30 September 2024. The reason for dismissal was incapacity: ill health. An incapacity enquiry was held before the applicant’s termination. The incapacity inquiry was held on 23 August 2024, and the applicant attended the said enquiry on the day. At the enquiry, the applicant informed the presiding officer that she needed more time as she was to undergo the ECT scan, which she believed would assist in her recovery.
7. In terms of issues that are in dispute:
   7.1.1 The parties recorded the following: The period that the applicant has been absent from work at the time of termination, whether a fair process was followed before the termination in terms of EEA and/or Labour Relations Act specifically alternative was considered, whether the incapacity was such nature it warranted a dismissal, whether the applicant informed the chairperson of the incapacity enquiry that she wanted to remain from work until July 2025 for her to complete ten years’ service.
8. Aggrieved by the decision to dismiss her, the applicant referred the dispute of unfair dismissal to the ELRC. She is seeking retrospective reinstatement.

THE RESPONDENT’S EVIDENCE
THE EVIDENCE OF HLENGIDIWE BIYELA: DEPUTY-DIRECTOR TRANSVERSAL HR SERVICES

9. She testified that the applicant was an employee appointed by the respondent at Park Senior School as Departmental Head.
10. She testified under cross-examination that the applicant was terminated whilst on leave because the PHS advised the Department that she was permanently incapable. They assessed the situation. She testified that there was a sitting that happened, but she did not attend the meeting. There were recordings.

THE EVIDENCE OF LEBOHANG MOGALE: THE ASSISTANT DIRECTOR OF LABOUR RELATIONS

11. She testified that she started in 2006 as the labour relations officer and was employed by the respondent in 2014 as the assistant director. She is presiding over disciplinary hearings and incapacity hearings currently in the department. She will draft her report with recommendations after presiding, and she will submit it to the Director, Labour Relations, for them to submit to the HOD for approval. They will communicate the outcome with the employee after the HOD’s approval. She has been involved in labour relations for 17 to 18 years.
12. She testified that the procedure was fair; whenever the applicant requested postponement, it was granted. The applicant received notification. The applicant indicated that she resigned in 2014, she was re-employed in 2015, and the incapacity hearing sat. She requested that the respondent must at least give her more months so that she could have ten (10) years of service in order not to forfeit her pension fund benefit allowance, and medical aid. She did not show any willingness to come back to work. She also indicated that she was going to undergo another procedure or operation, but she was unable to show whether she would be able to come back to work.
13. She testified that in terms of paragraph 3.1 of the Application for Temporary Incapacity Leave, it describes the illness or injury of an employee. The applicant stated a low energy level. She stated that she is forgetting.
14. She testified that in terms of paragraph 2.2, the applicant stated that she would not be able to plan for classes. She further testified that the applicant did not present any evidence to show that she was fit to come to work. What the applicant wanted was ten (10) years’ service.
15. She testified that the incapacity hearing was held in August. She did not see the OT Report, but she saw a document like a medical certificate from DR. Manesh Mohanlal. It states that the applicant would return to work on 15 July 2024.
16. She agreed under cross-examination that there are laws that make provision for an incapacity hearing before terminating. She testified that she chaired an incapacity hearing. She testified that there was a report from THRS during the hearing stating that the applicant cannot be gainfully utilized. The THRS got the report from the doctors. The applicant completed the application. She also testified that she did ask the applicant if she was willing to come back to work; in response, the applicant said “no”. She testified that the applicant must prove that her condition was not permanent. She testified that it would be unfair to look at the last paragraph because other documents were attached to the report. No list shows that the applicant’s condition is permanent, but she wrote that her condition is deteriorating. When it was pointed out that the medical report states that the applicant would return to work on 13 January 2025, she agreed after a very long time.

THE EVIDENCE OF BUYISIWE MABUYA: THE DIRECTOR FOR TRANSFORMATION

17. She testified that she does policies for gender, disability in the Transformation Directorate. She testified that the applicant has been employed as an educator. In terms of the transfer policy, the applicant was expected to initiate her transfer. If the applicant wanted to be transferred to another school, she needed to engage the SGB. If there is a vacant post that is substantive.
18. She testified that the prejudice the respondent had was first the hardship of getting a substitute teacher, and at the same time, paying the applicant. The applicant did try to get a transfer, but she was unsuccessful.
19. She further testified that the applicant never came back to school on 11 October 2022 until July 2023. She never reported to work.
20. She testified that since 2014, the applicant had been applying for normal sick leave, but she had exhausted it. The applicant started applying for temporary incapacity leave from 11 September 2018.
21. She testified that the questions to determine whether the dismissal based incapacity ill-health was fair are as follows: whether the employee was capable of the work that he or she was employed to do, if not, ascertain the extent to which he or she is unable to perform those duties, the employee is entitled to participate in the investigation, which may require further medical investigation, the employee can be asked to demonstrate his or her ability, if the employee cannot bad adapted.

THE EVIDENCE OF THE APPLICANT

22. She testified that she was terminated in September 2024, the reason was that she was permanently incapacitated, and she could not be gainfully employed by the department.
23. She testified that she attended a hearing, and when the verdict came in or was brought to her, it was stated that the Provincial Health Service (PHS) and her department stated that she could not be gainfully utilized because she was permanently incapacitated or permanently disabled.
24. She testified that she appealed because the presiding officer overlooked her submission in mitigation and closing arguments. In her response, she stated that she did not know what recommendations were considered. She was not taken to the State Doctor. She did not know the Risk Manager. She pleaded with the respondent to allow ten (10) years as she was left with nine (9) months, and she was going to lose the benefits which she desperately needed. She even went to GPEF to find out if she was going to get medical aid, but the respondent did not take it up.
25. She testified that she did not say that she did not show any interest in going back to work, but her doctor said she would be fit to go back to work this year in 2025. According to the respondent, they took her report to the Risk Health. She never consulted with the GDE doctors. The respondent took the medical report and concluded that she should be permanently incapacitated.
26. She testified that termination should be the last resort; she was not assisted in any way, and her duties were not reduced. According to the Occupational Therapist, she was supposed to be given that reasonable accommodation, but it did not happen. She was told to look for an alternative school, even when she was sick. She went to the district.
27. She testified that the respondent offered her no reasonable accommodation. She did not get any transfer. She testified that she never saw the GDE transfer policy.
28. She testified that on 29 September 2022, she sent an email to the Director of Transformation Unit, Buyisile Mabuya, wherein she stated that she received a letter from Thandiwe asking her to come to work, Unfortunately, she could not come to work; she was not ready emotionally, she was sick, she was on leave, and she indicated she would go back to Park Senior, which she did. She did not get a response.
29. She testified that none of her doctors had declared her permanently disabled. Her doctors recommended a transfer to alternative work. The Transformation Unit was supposed to come to school.
30. She also testified that the last paragraph of the Occupational Therapist states: “Ms Nomvula is currently unfit to go to work. She is part of employment equity. Current refers to when she was in hospital or on leave; it did not mean that she was permanently disabled.”
31. She testified that her doctors gave her a description of duties, and she was also participating in extramural activities, such as marking. She had poor concentration at that time. The doctor’s recommendations were not followed by the respondent, and unfortunately, they were not done.
32. She testified that at the meeting with Mr. Tsebe, Mr. Tsebe said to her that it was important to agree, and he also referred to his father, who had passed on. They then started with the meeting, where he advised her to retire; she is currently 61 years old. At the time, she was 60 years old. He further advised her to go to the Director.
33. She testified under cross-examination that she is not forgetful. She knew that they were supposed to have a pre-disciplinary hearing. She testified that she did attend the incapacity enquiry. When it was put to her that Lebohang and Buyisiwe indicated that she was terminated because she could not be gainfully utilized, she testified that the letter of termination states that she was terminated because she was permanently incapacitated. She testified that it was not the first time, and it was unnecessary to ask about the transfer policy because she went back to Park Senior. The fact that the presiding officer gave her time to go look for a school transfer is not a reasonable accommodation; in fact, it was a punishment. She testified that she was not fit to work in July 2024.

THE SECOND WITNESS: DR HAROON ABDUL ISSA: QUALIFIED CLINICAL PSYCHOLOGIST, NEURO PSYCHOLOGIST, AND FORENSIC INVESTIGATOR

34. He testified that these social workers, psychologists concluded that his main specialty of duty is mental health, forensic psychology. He knows the applicant as she was referred to him by two GPs in about 2010-2011. The first doctor was Dr. Zungu in 2011.
35. He testified that they work in a team consisting of psychiatrists, occupational therapists, clinical and social workers. They work together on one patient to treat the depression of a patient. The first page of the application for temporary incapacity leave states: “referred by DR. Issa.” It is a PILIR requirement, in conclusion, she said the applicant is occupationally unfit to work.
36. He testified that these social workers, psychologists concluded that the applicant is permanently incapacitated based on the assessment at the time of the applicant, but as they tried different treatments, she has now improved. As they work as a team, he did not see or discuss the report; the applicant might have a teacher’s aide, and the ECT was the last treatment approach for the applicant.
37. He testified that they did memory training to remember things again. They gave the applicant neurofeedback treatment, and she did show improvement. They were asked to make a report for the PILIR committee by the Transformation Committee.
38. He testified that Buyi asked for a reasonable explanation; the applicant will be able to meet the demand. He also testified that there was a programme that the applicant should come to see them in two weeks. There was a memory problem that they needed to work on.
39. He testified that he did not write that the employer must make an effort to accommodate the employee. It is the duty of the employer to assist the employee.
40. He testified under cross-examination that he did not write the occupational report. He testified that the incapacity hearing was concluded on 23 August 2024. He confirmed that there was an ECT process before 23 August 2024. He testified that the first ECT was on 19 January 2024. Manashe recommended ECT. According to him, the ECT was taken in 2024. He agreed that the last ECT was administered in January 2024, but the applicant was still not feeling better.
41. He testified that in 2016, that’s when the sickness started to take the toll on her; it is not like the applicant is doing this deliberately. This is the sickness she is sitting with. He further testified that the applicant did not agree to early retirement due to ill-health because she was starting to show improvement. He further testified he would not have wanted the applicant to be at school during the period from 9 July 2024 until 13 December 2024. He would not even transfer her to another school to be accommodated. He testified that Monica was talking about the period between 9 July 2024 and 13 December 2024, the applicant was still under treatment, and she was not fit to work.

ANALYSIS

42. This matter concerns an alleged unfair dismissal based on incapacity: ill-health. Generally, in terms of section 192(2) of the “LRA”, the respondent bears the onus to prove that the dismissal of the applicant was fair following the establishment of the existence of a dismissal. In the present matter, the existence of dismissal is not in dispute, and subsequently, I am of the view that dismissal has been established. The applicant did call an additional witness, whilst the respondent has called three witnesses to substantiate their case. The applicant had submitted a bundle of documents hereinafter referred to as bundle A, whilst the respondent submitted a bundle of documents hereinafter referred to as bundle R. Both parties had submitted their closing arguments in writing and formed part of this analysis.

APPLICABLE LAW

43. First and foremost, the temporary incapacity leave is governed by section 5 (3) of the “PAM,” which reads as follows: “Incapacity is not an unlimited number of additional sick leave days at an educator’s disposal. Incapacity leave is additional sick leave granted conditionally at the employer’s discretion and must be read with the Policy and Procedure on Incapacity Leave for Ill Health Retirement (PILIR) determined by the Minister for Public Service and Administration and made applicable to educators by the Minister of Basic Education in Gazette NO 29248, dated 22 September 2008.”
44. Moreover, Section (5) (3) (3) provides: “For an educator’s application for temporary incapacity leave to be considered: (2) an application form must, regardless of the period of absence, be accompanied by a medical certificate issued and signed by a medical practitioner that certifies his or her condition as temporary incapacity and if the educator has consented, the nature and extent of the illness or injury.”
45. Item 10 “INCAPACITY: ILL HEALTH OR INJURY: of the Code of Good Practice to the “LRA” provides that incapacity on the ground of ill health or injury may be temporary or permanent.
46. In addition, Schedule 1 to the Employment of Educators Act, 76 of 1998, “the EEA: provides that the employer must first investigate the extent of the ill health or injury. An obligation is placed on the employer to 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.
47. Temporary incapacity leave is governed by clause 7.1 of the Policy and Procedure on Incapacity Leave, Ill-health Retirement, and for ease of reference, I will call it “PILIR”. Clause 7.1 under “THE MANAGEMENT AND TEMPORARY AND PERMANENT INCAPACITY LEAVE” 7.1 TEMPORARY INCAPACITY LEAVE defines a short period of temporary incapacity leave, which is one to twenty-nine working days requested per occasion, whilst the long period of temporary incapacity in terms of clause 7.3 is thirty working days or more requested per occasion.
48. Firstly, it is a common cause that the applicant was placed on temporary incapacity effectively from July 2024 until 13 December 2024. According to the medical certificate submitted to the respondent, she was due to return to work on 13 January 2025.
49. According to Clause 4.3 of the Policy on Leave of the Department of Basic Education under the heading “TEMPORARY INCAPACITY LEAVE”, the respondent ought to have commenced with an investigation during the period of temporary incapacity leave whilst considering whether to approve or grant such leave. The investigation should include the nature and extent of the applicant’s illness.
50. In terms of Item 1 of Schedule 1 to the “EEA”, the respondent ought to conduct an investigation the extent of the ill health in the event it was of the view that the applicant was not performing in accordance with the post requirements that she has been employed to perform as a result of ill health. There is no evidence before me to suggest that the respondent had investigated the nature and extent of the applicant’s illness. I agree with the applicant’s version that the respondent only took into consideration her medical reports and reached the conclusion that she was permanently incapacitated. On perusal of those medical reports, including the Occupational Therapist report, nothing has been stated that the applicant has been permanently declared disabled or incapable.
    Item 10(1) of the Code of Good Practice places an obligation on the employer to investigate all the possible alternatives short of dismissal which include, the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee.
51. It is evident to me that the respondent failed to comply with the provisions of Item 3 of Schedule 1 to the “EEA”. The respondent did not nominate a registered medical practitioner in terms of Item 3(a) of Schedule 1 to examine the applicant on its expense, who should have reported on the applicant’s state of health. Even if it did, the report of Ms Shabalala did not conclusively state that the applicant could no longer perform her duties as per her contract of employment with the respondent. Alternatively, the applicant was not given an opportunity to nominate a registered medical practitioner of her own choice to do the same as with the registered medical practitioner nominated by the respondent.
52. Given the above, I do not doubt in my mind that the respondent did not determine the extent to which the applicant was able to perform her duties in line with the job requirements.
53. It should be noted that incapacity leave is the discretion of the employer, and it is considered to be additional sick leave with conditions attached. I wish to record that there is no evidence before me that when the applicant applied for temporary incapacity leave in July 2024, the respondent had declined it.
54. It is the version of the respondent that the occupational report stated that the applicant needed to be dismissed by September 2024. It appears to me that it did not matter what the circumstances of the applicant were at the time; the decision to dismiss her was inevitable.
55. Having regard to the above, I am of the view that the respondent did not comply with the Policy on Incapacity leave, Item 10 of the Code of Good Practice, and Schedule 1 of the “EEA” when dismissing the applicant, and such failure renders the dismissal of the applicant to be substantively and procedurally unfair.
56. Turning to the appropriate remedy, the applicant has indicated that she is seeking retrospective reinstatement. I disagree. I wish to record that the applicant has currently reached the retirement age in terms of the respondent’s policy regulating retirement age. Therefore, the order of reinstatement is practically impossible. I am of the view that, in the circumstances, the order of compensation is appropriate. Under the above conclusion, I have considered the degree of non-compliance with the relevant legislation, the time that elapsed since the dismissal of the applicant, the fact that the dismissal of the applicant is both substantively and procedurally unfair, the prejudice suffered by the applicant as a result of unfair dismissal and the delay of the resolution of this dispute caused by the respondent, that am of the view that the salary of 12 months will be appropriate calculated as follows: R39 779,80 monthly salary x 12 months =R477 357,60.
57. In the premises, I make the following ruling.

AWARD

15. I find that the dismissal of the applicant, SADTU obo Mpokane Nomvula, by the respondent, Department of Education: Gauteng Province, was substantively and procedurally unfair.
16. As a result of the above, I order the respondent, Department of Education: Gauteng Province, to pay the applicant, Nomvula Mpokane, an amount of R477 357,60 (four hundred and seventy-seven thousand three hundred and fifty-seven Rands sixty cents) .
17. The amount is payable to the applicant by no later than 31 July 2025.

P. Maitsha
ELRC Panelist