13 November 2025 -ELRC319-25/26EC



Case No ELRC319-25/26EC

In the matter between

Xolani Gotyi Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: Catherine Willows

HEARD: 29 October 2025

CLOSING ARGUMENTS: 5 November 2025

DATE OF AWARD: 12 November 2025

SUMMARY: Labour Relations Act 66 of 1995 – Section 191(5)(a) – alleged unfair dismissal on the basis of incapacity

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

This matter was held at the Department of Correctional Services, Qonce on 29 October 2025. On such date, the Applicant, Mr Zolani Gotyi was present together with his legal representative, Ms U Nonxuba of Squire Smith & Laurie Inc. The Respondent, Department of Education Eastern Cape, was present and represented by Mr Sivuyile Peter, Employee Relations Manager. Mr A Mqotsi as Department of Correctional Services Official, remained in the hearing room as observer.
No interpretation services were required.

THE ISSUE IN DISPUTE

I am required to determine whether or not the dismissal of the Applicant in terms of Section 191 (5) (a) of the Labour Relations Act of 1995 as amended (LRA) was substantively and procedurally fair, and if not to grant an appropriate relief in terms of the LRA.

THE BACKGROUND TO THE DISPUTE

The common cause facts are:

• The Applicant commenced employment with the Respondent in 2022 as a Level PL Level 1 Educator and was based at Alice Full Service School in Alice, Eastern Cape, within the Amathole West District.
• The Applicant’s last physical day of work was the 27th June 2024 as he was arrested on 15 July 2024.
• The Applicant remains incarcerated to date.

The following are facts in dispute:

• The Applicant avers that the sanction of dismissal was too harsh in the circumstances and that no alternatives to dismissal were considered.
• In terms of procedure, the Applicant asserts that no representation was afforded to him, a request for postponement was unfairly denied and that no opportunity for him to cross-examine in the internal hearing was provided.

The Applicant seeks reinstatement as relief.
Both the Applicant and Respondent representative’s presented a bundle of documents to be utilised in the presentation of their respective cases.

SURVEY OF EVIDENCE AND ARGUMENT

I have considered all the evidence and argument, the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons, as such I have only referred to the evidence and argument necessary to substantiate my award and was follows is a summary of the submission of the parties and not a verbatim record of proceedings.
All evidence was presented under oath/affirmation.

The Respondent’s Submission’s

The Respondent presented evidence through the testimony of Mr Sivuyile Peter.
Mr Peter submitted that in or around the June 2024 the Respondent was made aware of the Applicant’s arrest by the Principal of Alice Full Service School. Head Office thereby requested labour relations to investigate the issue. Upon completion of the preliminary investigation as to the Applicant’s ongoing absence, the witness stated that himself and another colleague from the Respondent secured a visit with the Applicant at the Department of Correctional Services in Qonce on 9 September 2024. Support for the operation was sought from the Department of Correctional Services to facilitate such visit.
In such meeting on the 9th September 2024 the witness explained that it was explained to the Applicant as to the process to unfold of an impending incapacity enquiry. The Applicant was served notification of the incapacity enquiry for which the hearing was scheduled for the 10th October 2024. Upon the request of the Applicant, the incapacity enquiry was postponed to the date of the 22nd November 2024.
The Applicant signed receipt of the re-scheduling of the incapacity hearing on 13 November 2024. The enquiry was again re-scheduled to 29 November 2024. On the 29th November 2024 the witness stated that he attended the hearing together with Mr Tshabe who is the Deputy Director for Human Resource Development for the Amathole West District.
In such process the witness submitted that the Applicant’s rights were explained to him and the right of an appeal should he be aggrieved by the outcome of the process. The minutes of such were captured and submitted in evidence in the Respondent’s bundle at page 16.
The witness stated that alternatives to dismissal were considered, but such were not practical nor feasible as they could not be applied in the circumstances of the Applicant/ For example, the witness submitted, that if it was a matter of poor performance or ill health, further performance training or medical support would possibly be an alternative. As School Term 3 commenced on 9 July 2025, no policy nor legislation provided for a substitute or temporary placement. The witness also stated that as the Applicant taught Grade 7, there was pressure from the school and community as to the prejudice of the learners not having the Educator present.
The witness stated that the Applicant did not request a postponement of the proceedings on the 29th November 2024, but had requested such on the 10th October 2024 in order to properly consult with legal representatives. The Applicant did mention not feeling well, but was attributed to that of food within the Department of Correctional Services. The Applicant also raised the concern of the unavailability of his representative.
Subsequent from the incapacity enquiry, the Applicant was served with his termination letter in February 2025. The Applicant subsequently appealed and the appeal outcome was issued to him dated 30 May 2025. The Applicant received his last remuneration on 20 May 2025.
Under cross-examination, the witness was questioned as to whether the Applicant had been suspended to which he replied in the negative, as there was no need, and the Department of Correctional Services had confirmed that the Applicant was incarcerated.
In closing the Respondent representative submitted that the definition of “Incapacity” in terms of Schedule 8, Item 10 and 11 of the Labour Relations Act 66 of 1995(LRA), Code of Good Practice, includes both poor performance and ill health or injury and which encompasses supervening impossibility of performance of the employee. This position was confirmed by various courts including Swissport SA (Pty) v Seanego & Others 2017, SA Private Security Workers Union obo Noma villa and Bosasa Operators (2016) as well as Solidarity and other v Armaments Corporation of South Africa (SOC) and others (2019) BLLR 248 LAC, whereby the judge viewed incapacity and impossibility of performance as interchangeable terms.
It was submitted that in light of the nature of the Applicant’s employment and the need for his presence in order to perform his functions, continued employment was highly impossible considering his right to freedom and movement were severely restricted for an indefinite amount of time. Although legislation and case law do state that alternatives are to be considered before an employee is dismissed, this is not to say that an employer is mandated to provide alternatives where it is not appropriate.
It was further submitted that Schedule 8, Item 10(4) and Item 11(2) of the LRA state that, before dismissal, the employer must consider alternatives such as counselling, job modification, or adjustment of duties. However, the employer must consider the possibility of alternative measures in as far as they are reasonable and practical. The court in Ndzeru v Transnet National Ports Authority and Others (C369/2020) [2023] 6 BLLR 565 (LC); (2023) 44 ILI 1307(LC), faced with a similar set of facts where an employee had become incapacitated due to incarceration, held that it was not reasonable to expect the appellant (employer) to have kept the position open and available to fourth respondent (employee) for an indefinite period of time and may dismiss them for incapacity after following due process.

The Applicant’s Submission’s

The Applicant. Mr Xolani Gotyi testified under oath that he was employed as a PL 1 Educator at Alice Full Service School for Grade 7 and taught the subjects of mathematics, economics and “EMS”. His last day of physical presence at the workplace was the 27th June 2024 and he was arrested on 11 July 2024.
The Applicant stated that he felt that his dismissal was too harsh as it was not fair to him and could affect the outcome of his pending criminal matter. In furtherance of such the Applicant cited that the Respondent had issued a letter of suspension on 19 July 2024 through the Principal of his school. One of the copies of such was provided to the investigating officer of his case, for which he believed had an influence on him not being granted bail.
The Applicant stated that he attended a meeting on the 9th October 2024 whereupon he was to be subjected to an incapacity enquiry. He was informed that the date for the meeting was the 22nd October 2024. On the 22nd October 2024 he was informed that the enquiry would proceed on the 22nd November 2024. He stated that he would inform his attorney of record and asked whether he could inform his Union (NAPTOSA) to which the response was that he could inform his union and they could represent him in the sitting. However, the Applicant stated that he is unable to make any calls due to being incarcerated and rather has to wait for friends and family to visit to relay messages. The Applicant stated that at the outset of the meeting on the 29th November 2024 he indicated that he did not feel well as he had a “runny stomach”. He stated that he asked kindly if he could have a postponement to the following week, which was declined. He signed a register and the meeting lasted “5 minutes”.
The Applicant stated he was under the belief that the process would unfold whereby he would utilise all his unused leave days for his absence and then placed on leave without pay. Under cross-examination the Applicant reiterated that he believed he was not granted bail due to him being suspended. The Applicant confirmed that he is accused of a Schedule 6 Offence and his criminal trial is scheduled to commence on 26 January 2026.
In closing, the Applicant’s representative submitted that the recent decision of Khanye v Auditor General of South Africa 2024 33 CCMA has facts to the case at hand whereby an Applicant was dismissed for failing to perform his duties as a result of being incarcerated for 10 months. The matter centred upon whether the Respondent had an obligation to consider and explore alternatives to dismissal. The Labour Court held that employers are to consider alternatives to dismissal where employees are absent for prolonged periods of time due to imprisonment. The Court held that such absence constituted supervening impossibility of performance and that employer’s should embark upon a Section 189 process where no alternatives are possible.
It was furthermore submitted that in Eskom Ltd v CCMA & Others JR2025/06 the Court held that the employer should have considered less drastic measures than dismissal.
It was submitted that it was the Applicant’s argument that the Respondent failed to adduce sufficient evidence to prove the fairness of the dismissal through the absence of witnesses, notably the chair of the internal enquiry, Mr Tshabe and the MEC who took the final decision to dismiss. It was submitted that in reasoning provided in the outcome of appeal, the MEC was misguided in terms of law and facts.
It was further submitted that the Applicant has always remained open to temporary unpaid leave whilst he awaits trial. A competent substitute teacher could be appointed temporarily in the position. As such, the Applicant requests that he be reinstated on an unpaid basis, whilst he awaits trial.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

I am required to determine whether the dismissal of the Applicant on 30 May 2025 was substantively and procedurally fair.
Employers are conjoined to follow the Code of Good Practice which has been drafted in accordance with the principles set out in the in Schedule 8 of the Labour Relations Act, no. 66 of 1995.
The Labour Relations Act, 66 of 1995 (LRA) recognizes incapacity as grounds for dismissal. Schedule 8 to the LRA also provides guidelines in relation to the different procedures that have to be followed in the case of incapacity due to poor performance and misconduct respectively.
Item 11 of Code of Good Practice: Dismissal, sets out the guidelines for Employers to follow when dismissing an Employee for incapacity, namely: “1. Whether or not the Employee is capable of performing the work and
1. If the Employee is not capable:
(a) The extent to which the Employee is able to perform the work;
(b) The extent to which the Employee’s work circumstances might be adapted to accommodate disability or where this is not possible, the extent to which the Employee’s duties might be adapted and;
(c) The availability of any suitable alternative work”.
In Legalwise Insurance South Africa v Kleinot NO and others (2020) 41 ILJ 2862 (LC) the Court noted the steps to be followed considering Items 10 and 11 of the Code of Good Practice as summarized by the LC in Parmalat SA (Pty) Ltd v CCMA (2017) 38 ILJ 2586 (LC):

(a) Is the Employee able to do his or her work?
(b) To what extent is the Employee able to perform his or her duties?
(c) Is it feasible to adapt the Employee’s work circumstances so he or she can continue to perform
his or her duties?
(d) If no adaption is suitable, has the Employer enquired about whether or not there is any other
suitable work?

In addition, Section 16 of the Employment of Educators Act 76 of 1998 provides that if it is alleged that an Educator is incapable of fulfilling duties efficiently, the employer must assess the capacity of the educator and may take action against the educator in accordance with the incapacity code and procedures.
The Applicant has challenged the fairness of his dismissal on both substantive and procedural grounds. In terms of substance, the Applicant avers that the sanction of dismissal was too harsh as alternatives were not considered and canvassed.
The Respondent submitted that alternatives were considered, but none were practical at the juncture of assessment, being the incapacity enquiry on 29 November 2024. At this juncture of 29 November 2024, the Applicant had been incarcerated for a period of over five (5) months. An estimation of when the Applicant would be in a position to return to work was not anticipated nor could be predicted. As the Respondent’s representative submitted, no legislation nor policy provided any prescript of an alternative for an employee who had been incarcerated, as this was not a circumstance of an employee suffering a bout of ill health nor a performance issue which could be remedied through additional training.
Even though the Code enjoins employer’s to consider alternatives, there is accordingly no right to such alternatives if none exist nor are reasonably practical or enforceable. The Applicant raised the issue of evidence adduced as both Mr Tshabe, Chairperson of the internal enquiry and the MEC who took the decision of appeal, were not present in the adjudication of the dispute. It is not clear upon what premise the argument of insufficient evidence is adduced, as the Respondent’s representative was present in the internal enquiry and therefore could adduce as to the process thereof and why alternatives to dismissal were not practicable nor feasible.
The obligation to consider alternatives to dismissal rests upon the Respondent, but there is accordingly no right on behalf of an Applicant to insist that such alternatives be implemented if such in the view of the Respondent are not suitable. Therefore, the averment of substantive unfairness on the premise of dismissal being too harsh has no grounding nor substantive basis in law.
It is therefore my assessment based upon the versions presented that the dismissal of the Applicant on the basis of incapacity encompassing impossibility of performance was fair.
In terms of procedural fairness, the Applicant averred that his dismissal was unfair as he was denied representation, postponement and was not provided an opportunity to cross-examine. It is not clear as to what basis the Applicant premises his averment of procedural fairness on the failure to cross-examine as in the incapacity enquiry, no evidence was led nor was any in dispute as is apparent from the minutes to such. The correspondence issued to the Applicant as presented in documentary bundle of the Respondent indicated that at all junctures and sittings between the representative of the Respondent and the Applicant, the Applicant was informed of his rights which was inclusive of that of representation. The Applicant is afforded the right to be represented but the obligation to secure and arrange such rests upon the Applicant himself. As at the date of the incapacity enquiry and prior, the Applicant had legal counsel and confirmed that he was a member of NAPTOSA.
Therefore, there is accordingly no basis upon which the Applicant’s averment of procedural fairness can be substantiated as the Respondent afforded him the rights required and observed the minimum requirements of such. Such was duly adequate in terms of the requirements of such. The Applicant was informed of the process of an incapacity enquiry, his rights afforded to him in respect of such and his rights of appeal to which he exercised. The Applicant was afforded the right to be heard pursuant to a decision being taken, in accordance with the principles elucidated for the minimum requirements of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others [2006] 9 BLLR 833 (LC).
In Ndzeru v Transnet National Ports Authority and Others [2023] 6 BLLR 565 (LC) the Court held that the established principle is that an employee must be given an opportunity to present their case before being dismissed and an employer cannot be expected to wait for an employee indefinitely and may dismissal after following due process. The Labour Appeal Court has found that incapacity has a broader meaning and that each case had to be determined by its own merits and facts.
The Labour Appeal Court in Samancor Tubatse Ferrochrome v MEIBC & others 2010 8 BLLR 824 stated “manifestly, the question as to whether a dismissal in the circumstances of the present dispute is substantively fair depends upon the facts of the case. An employer needs to consider the reasons for the incapacity, the extent of the incapacity, whether it is permanent or temporary, and whether any alternatives to dismissal do exist. In this case, the appellant had no idea as to how long the incarceration would endure. Further, the skilled nature of fourth respondent’s position made it commercially necessary for the appellant to make an expeditious decision about fourth respondent’s future and the imperative to ensure that a similarly skilled person could assume the responsibilities. A large organisation may be able to take a somewhat more generous approach to the particular problem of this case, namely, to keep an incarcerated employee’s position open until his return, in that such an organisation may have “deep financial pockets.” But, in principle, it cannot be the case that the law has developed an inflexible rule; that is that incapacity which is outside of the control of the employee cannot be a cause for dismissal. In my view, given the facts of the present dispute, it was not reasonable to expect appellant to have kept the position open and available to fourth respondent for an indefinite period of time, particularly in circumstances where he held an important position within the organisation. The potential indefinite length of the absence from work of a person holding a position which could not easily be filled by temporary employees renders this case one of incapacity as I have applied that term”.
The Applicant’s version of procedural and substantive fairness are not persuasive nor grounded in a substantiated basis in law. An employer is not obliged to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted. The Respondent’s representative submitted as to why no alternatives were practical nor feasible and given the Applicant’s position, why a proposal of a temporary placement or unpaid leave was neither practical nor provided for in terms of any policy or practice.
The Respondent further submitted that there was no certainty as to when the Applicant would be in a position to resume the performance of his position. Faced with this uncertainty, a claim of unfairness as to the dismissal is without merit. The Respondent made practical arrangements to facilitate and ensure that the Applicant was kept informed of the process to be embarked upon, was afforded procedural rights and was given an opportunity to make representations. A dismissal in these circumstances was fair, as it was based on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.
On the basis of the evidence led, it is my assessment that the Respondent has gone above and beyond to accommodate the Applicant and none of their actions in the dismissal can be equated with unfairness.
Upon an analysis and evaluation of the probability and improbability of each party’s version on the disputed issues, it is my finding that the Respondent has succeeded in discharging the onus of proof that the dismissal of the Applicant on the basis of incapacity in terms of impossibility of performance was fair in all respects.
In the premises I make the following award: