Panellist: Asnath Sedibane

Date of Award: 17 July 2024

In the ARBITRATION between:

SADTU obo Hughes Tlankelani Kenneth
(Union / Applicant)
And

Education Department of Gauteng
(Respondent)

Union/Applicant’s representative: Mr.Tuwani E Ramabulana
Union/Applicant’s address: Telephone:
Telefax:
Email:

Respondent’s representative: Ms. Thato Morewane
Respondent’s address:

Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between SADTU obo Hughes TK and the Education Department of Gauteng was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings and Microsoft Teams, on 26 April 2024 and again on 25 and 26 June 2024 respectively.

2. The applicant attended the process and he was represented by Mr Tuwani Ramabulana, a SADTU Reginal Chairperson. The respondent was represented by Ms Thato Morewa, Assistant Director: Employee Relations. The respondent submitted bundles of documents which were marked as “A1”, “A2” and “A3”. The respondent led evidence through two witnesses, Ms Buyisiwe Mabuya, Director: Transformation and Mr William Lehari, former Acting Principal. The applicant submitted bundles of documents that were marked as bundle “Occupational Report 1” and “Occupational Report 2”. The applicant testified and called three witnesses, Mr Ishmael Diphofa, Occupational Therapist, Dr Seanaba Skosana, Neurologist and Mr Makhado Humfrey Mashige, Educator. The proceedings were conducted in English and were manually and digitally recorded.

3. Ms Catherine Khungwane and Ms Mahlori Kubayi assisted with interpretation from English to Setswana and vice versa, on different dates of the arbitration.

 4. The parties agreed to submit closing arguments, in writing, by no later than 03 July 2024. I have received the closing arguments from both parties and I have taken these into consideration when making this award.

 ISSUES TO BE DECIDED
5. I am required to determine whether the dismissal of the applicant by the respondent was both procedurally and substantively fair.

 BACKGROUND TO THE DISPUTE
6. The applicant, Mr Hughes was employed by the respondent as an educator at Kgomotso Comprehensive School on 01 May 2016 and he was dismissed on 12 October 2023. At the time of dismissal, the applicant was earning a basic monthly salary in the amount of R36 450-13.

7. In addition to the issues agreed on in the pre-arb minutes, it was agreed by the parties that the following issues were also common cause between them:
7.1 The applicant was dismissed for incapacity.
7.2 The second report by the Occupational Therapist was received after the applicant was dismissed.
8. The parties agreed that the following were issues in dispute:
8.1 Whether the applicant can be gainfully employed.
8.2 Whether the applicant is permanently incapacitated.

 SURVEY OF EVIDENCE AND ARGUMENTS
THE RESPONDENT’S CASE:
The first witness for the respondent, Ms. Buyisiwe Mabuya, Director: Transformation, testified under oath as follows:
9. She has worked for the Gauteng Department of Education since 1987.The issue of the applicant was brought to her attention by the district and the school. She had several consultation meetings with the applicant for purposes of his reasonable accommodation.

10. An incapacity inquiry was held with the applicant after it came to the attention of the respondent that he was not performing his duties as an educator and he was sitting with guards at the school’s gate. The policy for reasonable accommodation makes it compulsory for the Principal to come to the meeting. The applicant is allowed to bring a Union representative to the meeting. This process is mandatory in terms of the Employment Equity Act.

11. The applicant was found to have epilepsy and major depression. To determine the applicant’s functionality he was requested to consult with an Occupational Therapist. The Principal of the school reported that the applicant was not gainfully employed, he was not going to classes.

12. After several meetings and requests for the applicant to consult with an Occupational Therapist, he only did submit the OT’s report and in terms of the report, the applicant could not be gainfully utilised. At the meeting where the applicant was requested to consult with a State Doctor, he was aggressive and could not settle down and Police had to be called.

13. The applicant was subjected to an incapacity inquiry and a substitute educator had to be put in his place between 01 June 2022 and 31 August 2022. Since the OT’s report was not conclusive, the respondent had to refer the applicant to a Health Risk Manager (HRM). The Health Risk Manager, after assessing the applicant, reported that the applicant was totally and permanently incapacitated. The HRM recommended that the respondent must commence with the process of exiting the applicant from the department. The respondent wrote a letter to the applicant advising him of the HRM’s recommendation and also advising him that if he was not in agreement with the HRM’s recommendations, he should submit reports from his own treating Doctor and Occupational Therapist. The applicant failed to submit the reports until he was subjected to an incapacity inquiry.

14. The reports by Dr Skosana, the Neurologist and the Occupational Therapist, Mr Ishmael Diphofa that the applicant submitted as evidence were not submitted to the respondent before he was dismissed. The applicant may apply for re-employment and submit these reports. The respondent will upon receipt of the application for re-employment send the applicant to the Health Risk Manager. The applicant will have to pay the prescribed fee, in line with the applicable prescripts.

15. Under cross-examination, Ms Mabuya reiterated that for the department to be able to reasonably accommodate the applicant, he should have provided the department with the required documentation. In terms of the Policy, reasonable accommodation would be possible if the employee is still able to perform the core function of his job. In the case of the applicant, it would be the planning and teaching of lessons.

16. She reiterated that the Neurologist and Occupational Reports were submitted by the applicant after he was already dismissed by the respondent.

17. The invitations to the applicant to attend the consultation meetings stated that he could bring a union representative of his choice. She does not know if the applicant had elected not to be represented by a union representative in the meetings. She refuted the version that the applicant did not give consent to be assessed by the Health Risk Manager.

18. The applicant could not be given alternative duties as the HRM’s report indicated that he was totally and permanently incapacitated and could not perform his duties or any other duties within the department. She disputed that the applicant was performing his duties as an educator before he was dismissed.

 The respondent’s second witness, Mr William Lehari, testified under oath as follows:
19. He is employed by the Department of Education since January 2017. He currently works at Hlanganani High School. He acted as Principal at Kgomotso Comprehensive High School between 01 November 2022 and 30 June 2023.

20. He came to know the applicant when he acted as Principal of Kgomotso Comprehensive High School. The applicant was one of the teachers at the school. He had an interaction with the applicant about him not attending classes and not teaching lessons. The applicant told him that he was not well. He wrote a letter to the District concerning the issue. The District Office responded orally and told him that they were aware of the issue and they were dealing with it. He had also engaged members of the School Management Team (SMT) about the issue and they had told him that there was nothing they could do about the matter.

21. The applicant would come to school and sit at the gate with the patrollers. There was a teacher who was teaching learners in the place of the applicant.

22. Under cross-examination, Mr Lehari testified that the medical reports submitted in respect of the applicant were not directed to him and he could not comment on the applicant’s condition as he is not a medical doctor. He had witnessed one incident where the applicant experienced an epileptic attack, that was in April 2023.

23. The applicant stayed not far from the school and he was walking to come to work. He had asked the applicant how he managed to walk to work and the applicant had told him that his elder son was assisting him. He had not attended the meetings for the reasonable accommodation of the applicant.
THE APPLICANT’S CASE:
The applicant, Mr Tlankelani Kenneth Hughes testified under oath as follows:
24. He had been teaching from 2016 until he was dismissed in 2023. He disputes that he had not been teaching since 2020. He does not agree with the report by the Health Risk Manager that he is totally and permanently disabled. He is able to teach and perform any duties within the Department of Education.

25. He was diagnosed to be epileptic by his Neurologist, Dr Skosana in 2021. He had been involved in a car accident on 25 April 2021 and he had lost his wife in that accident. He was however still able to teach and no one was assisting him in the classroom. He disagreed with the outcome of the HRM’s report and he had submitted reports from the Occupational Therapist and the Neurologist as he was advised by the respondent to submit the reports if he was not in agreement with the HRM’s report.

26. What is stated in the HRM’s report that he had elephantiasis and that he had once dislocated his right eye in front of learners and one learner had put it back in place was not true. He felt belittled by this.

27. He did not have union representation in the meetings for reasonable accommodation. The SADTU representatives indicated on the attendance registers were not from his branch and they were not representing him in the meetings.

28. He disputes that there was a substitute teacher who was appointed to teach learners on his behalf. He agrees with the report by the Neurologist as he is feeling much healthier. He only experienced one seizure in 2023.

29. He was treated unfairly by the respondent. He had submitted all required documents to the District. He referred the matter to his Union after he was terminated. The Union declared this dispute. He is currently unemployed and without any income, he cannot afford to pay the amount of between R3500-00 and R6000-00 to be assessed by the Health Risk Manager.

30. He had not signed any consent for the respondent to refer him to Dr Motsepe, the Occupational Therapist and also when he was referred to the Health Risk Manager.

31. The recourse he wants from this process is reinstatement and backpay of his salary.

32. Under cross-examination, Mr Hughes disputed that he had not been teaching learners and not attending lessons. He did not dispute that he had not attended the first meeting for reasonable accommodation and that he had told the respondent that he was still on incapacity leave. He said that he was still traumatised at the time.

33. He submitted that he had submitted the Doctor’s report and the Occupational Therapist’s report to the District. When put to him that his own Occupational Therapist, Ms Mahanyele stated in her report that he was not fit for work, Mr Hughes response was that he disputed this and he could still teach. He further disputed the report by the Health Risk Manager.

34. It was put to Mr Hughes that he had failed to submit the relevant reports from 14 November 2022 until the incapacity inquiry in June 2023. His response was that the reports were submitted even though they have been submitted late.

35. He disputed that his failure to submit the reports on time led to the Presiding Officer in the incapacity enquiry finding in favour of the employer. He contended that the Presiding Officer was biased and impartial.

36. He disputed that it was common cause as per the minutes of the pre-arb meeting that he was not going to class but was sitting with patrollers at the gate. He contended that he was not consulted when the minutes were prepared. He however did not dispute that he was part of the pre-arb meeting on 17 April 2024 where the minutes were compiled.

37. He disputed that there was a substitute teacher who had been teaching lessons in his place. He contended that he had been going to classes on a daily basis. He however said that he did not have any evidence to prove this.

38. He did not dispute that the OT’s report of 12 December 2023 had not been tested and that it would be unfair to rely on the report that had not been tested.
The second witness for the applicant, Mr Ishmael Diphofa, Occupational Therapist, testified under oath as follows:
39. He is the applicant’s Occupational Therapist, the applicant had been referred to him by Doctor Skhosana, the Neurologist. He assessed the applicant in January 2024. According to information he received, the applicant had been involved in car accident on 24 April 2021.

40. In his assessment of the applicant, he relied on what the applicant presented during the assessment. Nothing prevents the applicant from returning to work as an educator. The applicant can be reasonably accommodated by giving him a few minutes to rest in-between lessons.

41. The reason the first Occupational Therapist’s report and his report are different may be because the applicant’s condition has improved with optimised treatment and the assistance of a clinical psychologist. In his assessment, there were no signs of elephantiasis or vision impairment.

42. Under cross-examination, Mr Diphofa confirmed that he assessed the applicant on 31 January 2024 and issued his report on 05 February 2024. He acknowledged that at the time when he assessed the applicant, he had already been dismissed by the respondent. He did not know whether it would be fair for the respondent to consider his report after the applicant had already been dismissed and when there were processes that needed to be followed if the applicant was to be reinstated.

43. He did not dispute that the first OT’s report said that the applicant was not fully functional. He said that the problem with the first OT’s report was that conclusions were made before the applicant’s treatment was optimised. OTs rely on treating specialist’s report for optimisation of treatment.
The third witness for the applicant, Dr Seanaba Skosana, Neurologist, testified under oath as follows:

44. The applicant is her patient since 2021, he was referred to her by Doctor Mguni, the Neurosurgeon. The applicant had epilepsy since a motor vehicle accident in 2015 and Doctor Mguni had struggled to control the applicant’s condition. The applicant complained about memory loss and swelling in the hands and feet. She had referred him to a Physician to check his lungs.

45. The problem she had experienced with the applicant was that whenever he experienced seizures, he had gone to hospitals near him and they would prescribe different medications. In 2023 she had sat down with the applicant’s sister and fiancé regarding the issue and for them to assist the applicant to take his medication, she had started to see improvement in his condition.

46. The applicant will not be completely seizure free but as long as he took his medication, he will continue to improve. She was not contacted by the respondent for a report. She had referred he applicant to an Occupational Therapist and she agrees with the OT’s report that the applicant can be reasonably accommodated. She was taken aback when she learned that the applicant had been terminated from service and not medically boarded. The respondent should have gotten reports from the applicant’s treating Doctor and Occupational Therapist before terminating his service.

47. Under cross-examination, Dr Skosana said that the applicant had started showing great improvement from January 2023. She has never said that the applicant was totally incapacitated. The respondent should have contacted her for a report if the applicant was not cooperating in terms of providing the required report. She had provided the report to the applicant at his request and the 12th of June 2023 was not the first time that she had consulted with the applicant.

The fourth witness for the applicant, Mr Makhado Humfrey Mashige, an educator at Kgomotso Comprehensive High School, testified under oath as follows:
48. The applicant is his former colleague, he has known him since 2016. He knows that the applicant has epilepsy since 2021 when he was involved in a motor vehicle accident in which he lost his wife. After the accident the applicant had seizures at least twice a week. The applicant had never stopped working and he had never had seizures in the classroom.

49. The applicant stopped working after he was terminated from service in November 2023. The applicant used to walk to and from work and he performed his duties such as teaching learners and marking scripts. His condition had improved since he started seeing a Neurologist.

50. The only time he had seen the applicant sitting with patrollers at the school gate was after he had been terminated from service. There is a teacher at the same school whose condition is worse than that of the applicant and who has not been to work for two years but has not been dismissed. It is unfair for the applicant to have been dismissed.

51. Under cross-examination, Mr Mashige reiterated that the applicant had been teaching lessons. He said that he had seen him in class. He however confirmed that he did not witness the applicant teaching lessons. He confirmed that he was not aware that the applicant had gone through processes for reasonable accommodation. He was not aware that the applicant was afforded the opportunity to submit the Doctor’s and Occupational Therapist’s reports and that he had failed to do so.

52. He did not know what processes the respondent was busy with in respect of the teacher who has not been at school for two years.

 Closing Arguments
53. In closing the respondent’s representative submitted that the respondent has proven, on a balance of probabilities, that the applicant’s dismissal was both procedurally and substantively fair. The applicant was given an opportunity to submit a comprehensive medical report from his treating doctor as well as a report from his own Occupational Therapist, to substantiate his submission that he could still be gainfully utilised by the respondent. The applicant has failed to submit the reports, despite having been afforded the opportunity to do so. The respondent has through the evidence of Ms Mabuya, demonstrated that the applicant was invited to various meeting where his reasonable accommodation was discussed and the applicant attended some of those meetings and was so aggressive in one of the meetings that Police had to be called.

54. Dr Skosana testified that the applicant started showing improvement from 2022 to 2023 but according to the State Doctor’s report, the applicant was totally and permanently disabled. Mr Mashige’s evidence that the applicant was teaching learners, marking scripts and issuing reports must be rejected. There is no documentary evidence to support this and the applicant admitted in the pre-arbitration meeting that he was not teaching learners but he was sitting at the gate with patrollers. The applicant struggled with his memory, even during the arbitration, he said that he could not remember Ms Mabuya’s testimony and he also denied having consulted with Ms Mahanyele, the Occupational Therapist. The applicant could not be gainfully utilised by the respondent and the applicant has to follow the correct procedure to apply for his reinstatement.

55. In closing, the applicant’s representative submitted that Labour legislation require an employer to reasonably accommodate the needs of an employee with physical or mental impairments. Dr Skosana, the applicant’s treating Doctor testified that the applicant is not disabled and his condition may be controlled with medication. All the applicant’s witnesses testified that the applicant was reporting to work, except on days that he was ill or was on leave. It is highly unlikely for a person to report to work everyday and not do his work. The applicant’s condition has improved tremendously since 2023.

ANALYSIS OF EVIDENCE AND ARGUMENTS
56. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.

57. The applicant has referred an unfair dismissal dispute to the ELRC, alleging that he was unfairly dismissed by the respondent and that his dismissal was both procedurally and substantively unfair.

58. The applicant was subjected to an incapacity enquiry in terms of items 6 and 8 of schedule 1 of the Employment of Educators Act 76 of 1998. The Presiding Officer of the incapacity enquiry found that the applicant was totally and permanently disabled to perform his duties as an educator or any other alternative duties within the department of education. As a result of the finding, the Presiding Officer pronounced a sanction of termination due to ill-health.

 59. It is the reason for dismissal and the procedure that the respondent followed in dismissing the applicant that is the basis of the applicant’s dispute, lodged with the ELRC.

60. The respondent has confirmed that the applicant was terminated from service. Since dismissal was not in dispute, the onus on the respondent to prove, on a balance of probabilities, that the dismissal of the applicant was procedurally and substantively fair.
Substantive Fairness

61. The Code of Good Practice: Dismissal, schedule 8 of the Labour Relations Act 66 of 1995 provides
guidelines for dealing with dismissal arising from ill health or injury, which are as follows:

11 Guidelines in cases for dismissal arising from ill health or injury
Any person determining whether a dismissal arising from ill health or injury is unfair should consider-
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable-
(i) the extent to which the employee is able to perform the work;
(ii) 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
(iii) the availability of any suitable alternative work.

62. The respondent led evidence through two witnesses. Ms Buyisiwe Mabuya, Director: Transformation
testified that her office had received a report about the applicant not performing his duties as an
educator but reporting for work and sitting at the school gate with patrollers. Ms Mabuya further testified
that the respondent followed prescribed procedures for reasonable accommodation. Several meetings
were arranged, to attempt to assist the applicant with reasonable accommodation. The applicant did not
attend some of these meetings and even when he attended, he was not represented in some of the
meetings and he was not cooperative.

63. Ms Mabuya referred to written invitations and minutes of the meeting for reasonable accommodation, to
prove that the procedure was followed and an attempt was made by the respondent to reasonably
accommodate the applicant. The applicant failed, despite being requested by the respondent, to submit
relevant medical reports and reports from his own Occupational Therapist, until the respondent
subjected him to an independent medical assessment, performed by the Health Risk Manager of the
respondent.

64. In her evidence, Ms Mabuya further referred to the report by the Health Risk Manager that the applicant
was totally and permanently incapacitated to perform his duties as an educator and that he could not
perform any alternative duties within the department due to his incapacity. The applicant was afforded
the opportunity, if he disagreed with the recommendation by the Health Risk Manager, that he be
dismissed due to ill heath, to submit reports from his treating doctor and his own Occupational Therapist.
The applicant disagreed with the Health Risk Manager’s recommendation but also failed to submit the
required reports.

65. Mr Lehari who acted at Kgomotso Comprehensive High School between November 2022 and June
2023 testified that he had reported the issue of the applicant to the district after he realised that the
applicant was not performing his duties as an educator and that another teacher was teaching learners
on his behalf. It was further the evidence of Mr Lehari that he had inquired from the applicant why he
was not performing his duties and that the applicant’s response was that he was not well.

66. The applicant disputed that he was incapacitated due to ill health, he testified that he had always
performed his duties as an educator, attending lessons and teaching learners. He disputed the
evidence of Ms Mabuya that he was reporting for work daily but sitting at the gate with patrollers. He
also disputed that he had admitted to this during the pre-arbitration meeting.

67. Mr Ishmael Diphofa, an Occupational Therapist, testified that he had consulted with the applicant on 31
January 2024 and issued his report in February 2024. According to Mr Diphofa, the applicant’s
condition was improving and he would be able to perform his duties as an educator, with reasonable
accommodation. He acknowledged that his report was done after the applicant had been dismissed due
to ill health. He further did not dispute that his report would not have been considered during the
incapacity enquiry as the enquiry was held at least six months before he assessed the applicant’s
condition.

68. Dr Skosana, the Neurologist who treated the applicant after his referral to her by the Neurosurgeon,
testified that she does not agree that the applicant was totally and permanently incapacitated to perform
his duties as an educator. According to Dr Skosana, the applicant has shown tremendous improvement
since January 2023 and he could reasonably be accommodated by the respondent. She could not
dispute that her report dated 12 June 2023 was done on the same date that the applicant had attended
the incapacity inquiry and that the applicant had consulted with her after attending the inquiry. Dr
Skosana testified that she had provided the applicant with reports whenever he requested them and
that the report of 12//06/2023 was not the first one she had given to the applicant.

69. Mr Mashige, a former colleague of the applicant testified that before his dismissal, the applicant was
performing his normal duties as an educator and it was only after the dismissal that he had seen the
applicant sit at the school gate with patrollers. He could not dispute that there was no evidence in the to
support his testimony that the applicant was teaching, marking scripts and issuing reports. Mr Mashige
conceded that he did not go to classes with the applicant and has therefore never witnessed him
actually teach learners.

70. Ms Mabuya’s evidence was consistent with the documents pertaining to the process followed before the
applicant was found to be incapacitated to can perform his duties or any other duties within the
department. The medical reports and the report of the Occupational Therapist that the applicant
submitted prior to the incapacity hearing confirm that the applicant, at the time he was assessed by the
State Doctor was totally and permanently incapacitated. The applicant, even though he disputed the
contents of the reports, could not produce any contrary evidence in the form of reports by different
experts, made during the same period.

71. The applicant’s own expert witnesses confirmed that their reports were made after the applicant had
already been subjected to the incapacity inquiry and found by other experts to be totally and
permanently incapacitated. Both Doctor Skosana and Mr Diphofa could not dispute that the applicant
was afforded the opportunity, through the prescribed processes, to submit his own Doctor and
Occupational Therapist’s reports, prior to his dismissal.

72. The applicant, through his Union Representative, admitted in the pre-arbitration meeting that he had not
been teaching learners even though he was reporting for work every day, prior to his dismissal. When
giving evidence however, the applicant disputed that he had not been teaching learners and he testified
that he could not remember the admission he had made on the pre-arbitration meeting.

73. The applicant could not remember a lot of things, including the testimony of Ms Mabuya in the
arbitration. He could not dispute that he, through his representative, failed to dispute most of Ms
Mabuya’s testimony. The applicant disputed the report of his own Occupational Therapist, Ms
Mahanyele and went further to say that he could not remember being assessed by Ms Mahanyele.

74. The only issue in dispute as recorded in the parties’ pre-arbitration minutes was whether the applicant
could be gainfully employed by the respondent. It is common cause that the applicant developed
epilepsy and was diagnosed with neurocognitive disorder and major depressive disorder, following a
motor vehicle accident. He was unable to perform his normal duties as an educator and this was
confirmed by a medical practitioner through an independent medical assessment report.

75. I accept the version by the respondent’s witnesses that the applicant was invited to a process that was
aimed at establishing if he could reasonably be accommodated and which process the applicant did not
fully participate in. He was afforded the opportunity to be represented and he was represented by union
representatives at some of the meetings. The applicant was afforded the opportunity to present reports
by his own treating doctor and Occupational Therapist for purposes of his reasonable accommodation
but he failed to do so timeously.

76. The respondent could not reasonably accommodate the applicant, in the absence of reports by a
medical practitioner and occupational therapist, other that the reports in possession of the respondent,
declaring the applicant total and permanently incapacitated and recommending his termination from
service.

77. The respondent did not dispute the reports by both Dr Skosana and Mr Diphofa, advising that the
applicant’s condition has improved and that he may still work as an educator, with measures in place to
assist him. The respondent however pointed to the fact that the since the report came after the
incapacity inquiry, the applicant could apply for reinstatement, submit the required documents and pay
the prescribed amount for Health Risk Manager to assess him and make recommendations regarding
his reinstatement.

78. The Courts are clear that in determining the fairness of a dismissal for incapacity due to ill-health, the
onus rests on the employer, to prove, on a balance of probabilities, that dismissal was the last resort,
after considering whether the employee could be reasonably accommodated or if there was alternative
suitable work available for the employee. The Labour Appeal Court in General Motors (Pty)Ltd v
NUMSA obo Ruiters (2015) 36 ILJ 1493(LAC) emphasised the need for the employer to investigate all
alternatives prior to dismissal, in incapacity processes.

79. In Legalwise Insurance South Africa v Kleinot NO and others (JR502/15) [2019] ZALACJHB 199; (2020)
41 ILJ 2862(LC), the Labour Court held that the Commissioner erred when she found that the dismissal
of the applicant in that matter was substantively unfair because the employer did not support the
employee in her recovery and that there was no medical evidence to that the applicant was
permanently disabled. The Court found that noting that the employee could not continue in her position,
and bearing in mind that there were no other suitable alternatives, the Commissioner should have found
that the dismissal was fair.

80. After considering all the evidence as well as the applicable prescripts and legislation, I am satisfied that
the respondent has discharged its onus, by proving on a balance of probabilities that the applicant was
dismissed for a fair reason and in accordance with a fair procedure. This however does not spell the end
of the road for the applicant’s career as an educator. He may still apply for his reinstatement, in line with
the procedure prescribed for reinstatement.

Procedural Fairness

81. The applicant has alleged that his dismissal was also procedurally unfair in that he had not given
consent for him to be assessed by the Health Risk Manager and he was not represented by the correct
union representatives during the meeting for reasonable accommodation.

82. The respondent, through Ms Mabuya, led evidence that the applicant gave consent to be assessed by
the Health risk Manager, in accordance with the Policy and Procedure on Incapacity Leave and Ill
Health Retirement (PILIR). When it was put to Ms Mabuya under cross-examination, that the applicant
had not given consent, she reiterated that he had given consent, even though the consent form was not
part of the respondent’s bundle of documents.

83. I have considered the issue and I find the version of the respondent more probable in this regard. I do
not see why the applicant would have availed himself for the assessment by the Health Risk Manger if
he had not given consent to the assessment.

84. The respondent provided documentary evidence in the form of invitation letters and attendance registers
of the meetings for reasonable accommodation. Ms Mabuya testified that the applicant was advised, in
the invitation letters, of his right to bring a union representative to the meeting. Ms Mabuya further
testified and also referred to attendance registers, to show that the applicant had a SADTU
representative in some of the meetings that he attended. This evidence was not disputed when Ms
Mabuya was still on the witness stand. It was only during the applicant’s testimony that the issue of the
correct union representative was raised. The version about the wrong union representative representing
the applicant at the meetings was not put to Ms Mabuya and she could therefore not respond to the
issue.

85. The applicant was notified of his right to union representation in the meeting for reasonable
accommodation. It was therefore his responsibility to liaise with his Union regarding representation.
The respondent cannot be held accountable to ensure that the applicant was properly represented in
the meeting. I therefore find that procedure was properly followed.

86. The applicant has not raised any procedural defect in the incapacity enquiry. I therefore find that the
dismissal of the applicant was procedurally fair.

Award
1. The dismissal of the applicant, Tlankelani Kenneth Hughes by the respondent, Department of Education of Gauteng was procedurally and substantively fair.
2. The application is therefore dismissed.

Asnath Sedibane
ELRC Dispute Resolution Panellist