Panellist: Khuduga Tlale
Case Reference No.: ELRC567-25/26FS
Date of award: 13 May 2026

In the matter between:

Ntombizodwa Patricia Nomake Applicant

And

Department of Education – Free State Respondent

ARBITRATION AWARD

Details of hearing and Representation

1. The arbitration hearing between Ntombizodwa Patricia Nomake (“the applicant”), and Department of Education – Free State (“the respondent”) was held on 09 March 2026, and concluded on 04 May 2026, at the respondent offices in Welkom. The applicant appeared in person, and Mr. B Kgang, an attorney, represented her, whilst Mr. V Gubuza, Deputy-Director: Dispute Resolution, represented the respondent.
2. These proceedings were conducted in English, and were manually, and digitally recorded.

Issues to be decided

3. The issue to be decided is whether the applicant’s dismissal for incapacity due to ill-health was procedurally and substantively fair.

Background to the dispute

4. The applicant was employed by the respondent as an Educator (PL1) at Monyakeng High School on 18 June 2021. The applicant was medically unfit for her work as an educator from 18 February 2022 to 31 October 2025. She applied for incapacity leave for the said period, and her services were terminated on 31 October 2025 due to ill health. The dismissal was due to incapacity and, at the time of her dismissal she earned R30 175, 25, per month, which was paid in her bank account.
5. The applicant referred this unfair dismissal dispute to the Education Labour Relations Council (Council). This matter remained unresolved at the conciliation, and certificate of non-resolution was issued. The dispute was then referred for an arbitration. The respondent submitted a bundle of document, and it was marked ‘R’. Summary of Evidence

THE RESPONDENT’S EVIDENCE

First Witness: Mr. Kgosi Augus Mathejane

6. The witness testified under oath that he is employed by the respondent as Senior HR Officer at Lejweleputswa District Office. He was responsible for incapacity matters. After the employee exhausted his/her 36 sick leave days, he/she must submit the medical report from the medical practitioner. The respondent outsourced the incapacity leave procedure to Thandile Health Risk Management (Thandile).
7. When the respondent received the application for incapacity leave, they referred it to Thandile for medical assessment. Thandile would indicate whether or not the application was partly approved or fully approved, and the employee would be informed. Document “R2-R17” was the applicant’s profile at Thandile. Thandile issued two reports relating to the applicant’s health conditions on 05 February 2025, and 24 July 2025 respectively. The applicant became sick from 18 February 2022. She was booked off-sick for the following number of days; 2022 for 175; 2023 for 104, and 2024 for 107, as per “R4”. She was again booked off sick for 108 days in the year 2025 as per “R13”.
8. The applicant was not rendering service as an educator due to ill-health from 18 February 2021 to 31 October 2025. The respondent approved all her incapacity leave days from 18 February 2022 to 31 October 2025. Dr. Gororo was the applicant’s neurosurgeon, and he recommended ill-health retirement as per “R14”. Annexure F was the long incapacity leave, not ill-health retirement. The respondent did not investigate the applicant’s health condition. Thandile was the respondent’s second opinion.
9. The applicant’s medical practitioner did not comment about her illness, and the duration of her recovery. The ill-health retirement was recommended by the applicant’s medical practitioner. He, and the school deputy principal went to the applicant’s house on 05 August 2025 to hand over the termination letter as per “R1”. She was given until 31 October 2025 to indicate whether or not she agrees with her medical practitioner as per Annexure F of Policy on Incapacity Leave and ill-Health Retirement (PILIR). The applicant did not object to her medical practitioner’s recommendation.
10. Under cross-examination, he confirmed that he had done his job. There were no minutes taken for the meeting held on 05 August 2025. He stated that they went to the applicant’s house about termination of her services. Thandile report was presented to her on 05 August 2025. She was further informed that she could come back to her employment after recovery. There was no formal notification letter issued to the applicant to indicate whether or not she accepts or object the termination due to ill-health.
11. The discussion of the meeting was verbal and they allow her to respond within three (3) months prior to her termination. Thandile recommended Annexure F for short term retirement. Thandile reports were compiled by doctors’ as per “R7” and “R15”. The applicant was given three (3) months’ notice, instead of two (2) months. There was no alternative placement for educators.
12. Under clarity questions, he stated that the applicant was discharged, not dismissed, and they followed PILIR. The respondent outsourced the incapacity for assessment, and they took the doctor’s recommendation as competent. The applicant did not apply for ill-health retirement; it was Thandile who recommended discharge due to ill-health. Annexure F was the shorter ill-health retirement. Thandile said that the applicant was totally and permanently incapacitated. He agreed that there was no consultative meeting prior to the termination of service. THE APPLICANT’S EVIDENCE First Witness: Ms. Ntombizodwa Patricia Nomake
13. The witness testified under oath that no one consulted her about Thandile’s medical report. It was the first time she heard about Thandile’s report during the proceedings. She completed the incapacity leave and submitted to the respondent. It was the first time she saw Mr. Mathejane when he delivered the termination letter at home as per “R1”. Mr. Mathejane informed her that decision was taken to terminate her services because they could not afford to pay her, and the substitute educator.
14. She was not consulted prior to the termination of service. This decision of terminating her services did not set well with her. The speech therapist said that her illness will heal with times, and she was improving, and her illness was not permanent. The therapists do not know when she would be fully recovered. Mr. Mathejane afforded her an opportunity to come back to them about this decision of terminating her services due to ill-health, but did not revert to them. She told them that she was not ready to retire.
15. Under cross-examination, she confirmed having a meeting with Mr. Mathejane. She stated that she did not get any medical assistance from the respondent. She confirmed that she did not respond to the letter as per “R1”. She was booked off-sick due to ill-health, and it was not her choice. She confirmed that it would be the doctor who could confirm whether or not her fitness to work. She confirmed that she applied for incapacity leave from time to time, and she was not told about Thandile.
16. The respondent did not investigate whether or not her illness was temporary or permanent. There was no need for her to apply for ill-health retirement because she was improving. She could not be able to return to work currently because she was not fully recovered. She could return to work when she is fully recovered.
17. Under re-examination, she maintained that there was no need to reply to the termination letter as per “R1”. This letter did give her an opportunity to reply.
18. Under clarity questions, she stated that she sought retrospective reinstatement, but she was currently not fully recovered to return to work as an educator. She had no knowledge when she would be fully recovered. Second Witness: Ms. Dikhapile Elizabeth Nomake
19. The witness testified under oath that she is the mother of the applicant. She was part of the meeting held at her place on 05 August 2025. The respondent’s officials said they could not afford to pay the salaries of both the applicant, and her substitute anymore. They further said that if the applicant fully recovered, she can re-apply, and they handed-over the termination letter as per “R1”.
20. Under cross-examination, she confirmed that she was part of the meeting held on 05 August 2025. Summary of argument THE RESPONDENT’S ARGUMENT
21. The respondent’s representative stated that ill-health in the public service governs by PILIR. This policy document also governs an incapacity leave. The applicant’s incapacity documents were enough for Thandile to analyse her health conditions. The respondent followed their policy prior terminating her services. The applicant was absent from work for three (3) years and eight (8) months, and that required an action. THE APPLICANT’S ARGUMENT
22. The applicant’s representative stated that the applicant was not allowed to do a representation prior to termination of service. The respondent was required to follow a fair procedure, but they failed to do so. They even failed to offer the applicant an alternative employment. The applicant’s illness was not permanent, and the dismissal must be a last resort in the case of incapacity due to ill-health. Consultation, investigation, and alternative employment must be adhered to. The applicant’s termination of service due to ill-health was both procedurally and substantively unfair. The applicant sought retrospective reinstatement. Analysis of evidence and argument Introduction
23. The issue to be determined is whether the applicant’s dismissal for incapacity due to ill-health was procedurally and substantively fair. In unfair dismissal disputes, the applicant bears the onus to establish the existence of a dismissal. It is common cause that the applicant’s employment was terminated on account of ill-health. The respondent accordingly bears the onus to prove that the dismissal was fair. The respondent led the evidence of one witness.
24. Section 138(7)(a) of the Labour Relations Act (“Act”), as amended enjoins me to provide brief reasons for my findings.
25. It is well established that dismissal for incapacity arising from ill-health is a legitimate ground for termination of employment, provided that the employer complies with the requirements of fairness. In General Motors (Pty) Ltd v NUMSA obo Ruiters, the Labour Appeal Court reaffirmed that:
    “permanent incapacity due to ill-health constitutes a fair reason for dismissal, provided that the employer conducts a proper investigation into the extent of the incapacity and considers reasonable alternatives short of dismissal”.
26. Items 10 and 11 of Schedule 8 to the Act) require employers to:
    • investigate the extent and likely duration of the employee’s incapacity;
    • consult with the employee;
    • consider medical evidence; and
    • explore reasonable accommodation, including adaptation of duties or alternative employment.
27. These obligations are interrelated with the duty of reasonable accommodation under the Employment Equity Act 55 of 1998. A failure to comply with these obligations impacts both procedural and substantive fairness. In this matter, although the respondent alleged reliance on its PILIR, the policy was not placed before me. This matter must therefore be determined against the statutory framework of Schedule 8 of the Act. Whether the applicant’s dismissal was in accordance with a fair procedure?
28. Procedural fairness in incapacity cases requires a meaningful process in which the employee is consulted, afforded an opportunity to be heard, and involved in exploring alternatives to dismissal. It is common cause that no incapacity enquiry or consultation meetings were held with the applicant. The applicant’s application for incapacity leave was referred to an external assessor (“Thandile”), who recommended termination.
29. The applicant was on temporary incapacity leave from 18 February 2022 until her dismissal effective 1 November 2025. Despite this extended period, the respondent failed to conduct a proper incapacity enquiry as contemplated in items 10 and 11 of Schedule 8 of the Act. The process followed by the respondent was administrative rather than consultative. There is no evidence that the applicant was:
    • invited to make representations;
    • engaged on her prognosis; or
    • consulted on possible alternatives to dismissal.
30. The absence of consultation and a structured incapacity enquiry constitutes a material procedural defect. The respondent therefore failed to follow a fair procedure. Incapacity
31. The evidence establishes that the applicant suffered from a serious medical condition (vestibular schwannoma and subsequent craniotomy). It is common cause that she was incapacitated at the time of the termination of service. Although no comprehensive medical reports were submitted, the assessment report indicates that the applicant required assistance with daily activities and was unable to perform her duties. On the available evidence, I accept that the applicant was not capable of performing her duties as an educator at the time of termination of service. Extent of Incapacity and Prognosis
32. The evidence indicates prolonged incapacity exceeding three years. However, there is insufficient evidence that the incapacity was permanent. The applicant testified that she remained unfit for duty at the time of arbitration, but there was no definitive medical evidence establishing permanent incapacity or that recovery was impossible. In incapacity cases, dismissal is justified only where the incapacity is permanent or of an unreasonably long duration with no reasonable prospect of improvement. The respondent failed to properly establish this.

Reasonable Accommodation and Alternatives

33. The respondent bore the duty to consider the adaptation of duties; adjustment of working conditions; or alternative employment. The respondent’s evidence was limited to a general assertion that no alternative placement exists for educators. No evidence was presented of a search for alternative positions; engagement with the applicant on possible accommodations; or consideration of redeployment within the broader department. The applicant’s uncontested evidence was that she was not consulted regarding alternatives. A mere assertion that no alternatives exist is insufficient. The employer must demonstrate that reasonable steps were taken to explore alternatives, and this was not done. Conclusion
34. While the applicant was incapacitated, the respondent failed to properly investigate the extent and permanence of the incapacity; and exhaust reasonable alternatives to dismissal. The respondent’s failure to comply with the requirements of items 10 and 11 of Schedule 8 rendered the dismissal both procedurally and substantively unfair. Remedy
35. In terms of section 193(1) of the Act, reinstatement is the primary remedy unless one of the exceptions in section 193(2) applies. The applicant sought retrospective reinstatement. However, she conceded that she remains medically unfit to resume duties; and there is no evidence that she is capable of performing any work, even with accommodation. Reinstatement or re-employment would therefore be inappropriate. Compensation is accordingly the appropriate remedy.
36. In determining compensation, I have considered the seriousness of the procedural and substantive defects; the applicant’s length of service and circumstances; and the fact that dismissal was based on genuine incapacity, albeit unfairly handled. Compensation equivalent to six (6) months’ remuneration is just and equitable. The applicant’s monthly remuneration was R30 175.25. Compensation is therefore calculated as follow:
    R30 175.25, per month x 6 months = R181 051, 50.

Award

37. The dismissal of the applicant, Ntombizodwa Patricia Nomake, is found to be both procedurally and substantively unfair.
38. The respondent, Department of Education – Free State, is ordered to compensate the applicant the total amount of R181 051, 50, and which must be paid into the applicant’s bank account, the details of which are known to the respondent, by no later than 15 June 2026.

Signature:
Commissioner: Khuduga Tlale
Sector: Basic Education