IN THE EDUCATION LABOUR RELATION COUNCIL
Case Number – ELRC 1346-24/25 LP
PANELLIST: MMAKGARE SHAI
DATE: 18 AUGUST 2025
IN THE MATTER BETWEEN
SOLANI REINETH MABASO APPLICANT
And
LIMPOPO DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing took place on the 9th of July 2025 and the 24th of July 2025 at the Department of Education, Corner Hospital and Biccard Street, Polokwane, Limpopo province.
2. Both parties were present. The applicant was represented by Advocate Sebai Mahantola, whereas Ms. Nthabiseng Rasebotsa represented the respondent.
3. At the end of the proceedings, both parties filed closing arguments and same were considered herein.
4. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
5. I am called upon to determine whether the respondent committed an unfair dismissal by terminating the applicant’s employment contract based on ill-health incapacity.
6. If I find that the respondent had committed the alleged unfair dismissal, I must determine the appropriate relief for her.
BACKGROUND TO THE ISSUE
7. The applicant was employed by the respondent as a PLI educator with effect from the 17th of January 2007. The applicant was terminated on the 31st of December 2024 based on ill-health incapacity. At the time of her termination, the applicant was earning R42 624,55 (forty-two thousand six hundred and twenty-four rand fifty- five cents) per month.
THE DISPUTED FACTS ARE RECORDED AS FOLLOWS IN THE PRE-TRIAL MINUTES:
PROCEDURAL FAIRNESS
Applicant
• No procedure was followed, no consultation with the applicant, applicant was not offered an opportunity to state her case before being discharged.
• No proper hearing.
• No representation.
• No rights offered.
Respondent
• Respondent supported the applicant from day one of the inquiry.
• Gave medical attention and paid for her surgeons and occupational therapist (07).
• She previously worked in a High school and was moved to a primary school to ease her workload.
• Medical reports insisted the condition was not changing or improving and the applicant was to be given ill health retirement.
• The applicant was terminated due to incapacity ill-health.
• The respondent still gives the applicant medical assistance.
• That all procedures were followed in terminating her.
SUBSTANTIVE FAIRNESS
Applicant
• The applicant is mentally fit to continue being an educator.
• Injury does not hinder the applicant to work.
• There was no reasonable accommodation by the respondent.
• The applicant can be assigned to another position.
• The applicant holds qualifications that support her disability.
• The applicant has organized other mobility mechanisms.
Respondent
• The respondent supported the applicant from the day of the injury.
• Gave medical attention and paid for her surgeons and occupational therapist (07).
• She previously worked at a high school and was moved to a primary school to ease the workload.
• Medical report insisted her condition was not changing or improving and that the applicant be given ill-health retirement.
• The applicant was terminated due to incapacity ill health.
• The respondent still gives the applicant medical assistance.
SUMMARY OF EVIDENCE FOR THE RESPONDENT
MR MASULUKE THOMAS MANGAVIA TESTIFIED UNDER OATH AS FOLLOWS:
8. He is employed as an Assistant Director of Human Resource by the respondent. He has known the applicant since 2010. When the applicant’s injury on duty was registered. in 2012, he began to investigate her long absence from work while she was still at Gawula High school. He discovered that she has had a car accident and medical reports suggested she had multiple injuries. His investigation concluded that she could not be relieved of her duties at that stage because she had less than ten years’ service with the respondent.
9. Thereafter, the applicant asked to be moved to a nearer school, Rehlabile Primary school in 2014, which was granted.
10. Between 2014 and 2022, the respondent kept on receiving sick leave notes.
11. In 2023, the applicant continued to submit injury on duty leave forms, first one for two months and the second one for more than six months.
12. In the meantime, the respondent received a request for replacement educators to deal with the situation of the applicant. For the whole of 2024, she could not be replaced, as the requests were declined.
13. It was then recommended that the applicant be terminated for ill-health-incapacity. The matter was then handed to the wellness division to assist with medical reports. A report from Doctor Malumane was already available which indicated that there was poor prognosis. Around July 2024, the respondent got a report from Doctor Mabote, an occupational therapist which recommended the medical boarding of the applicant.
14. The respondent wrote her a letter informing her of the two medical reports and that based thereon the respondent had the intention to start the process of boarding her. The applicant was then asked to complete the necessary documents, including a consent form. The applicant duly complied and signed the said documents. In any application of this nature, they always quote Circular 306 of 2011, which stipulates the time frame within which the documents should be filed.
15. After receipts of her response, a recommendation for her boarding in terms of chapter 4 of Educators Act 76 of 1998 was made and approved. The applicant had been consistently absent from work. Her last post being Ntsalama primary school complained about her absence and failure to get a replacement because she was still within the system.
16. Page 103 of bundle R is a follow up letter by Gawula high school and paragraph 5 thereof says the following:
“5. The SGB therefore request:
5.1. That the deployment of Mrs. Mabaso be reversed with immediate effect.
5.2. That our post be declared vacant so that the school could engage an educator who will assist our learners”
17. Page 106 of bundle R is a letter dated the 11th of July 2024 with caption” Request for a substitute post to replace Mabaso S.R, persal 20365306 who has been on leave for occupational injuries and discases since 24th February 2023. This shows the frustrations Nzalama primary school experienced with her absence from work and inability to get a replacement educator.
18. If the applicant was terminated before she had ten years’ service, she would lose on pension and other benefits.
19. Further, her transfer from Gawula high school to Rehlabile primary school was meant to relieve her travelling time and to reduce her workload at a primary school.
20. Further that, circular 303 of 2011 prohibits translation of educators into administrative post. The said circular says at paragraph 3:
“The translation of school educators to post in the department created based in terms of public service Act will not be considered as a result of the incompatibility of salary levels of educators and those of employees appointed in terms of the public service Act.”
21. When it was put to her that the applicant complained that there was no enquiry before her dismissal, he said once the employer is satisfied with the report that the applicant cannot continue to work, the employer is entitled to terminate her. The report from Doctor Malumane stated that her condition was permanent and there is poor prognosis. The respondent received the reports from Doctor Malumane, orthopedic surgeon and Doctor Mabote, Occupational therapist.
22. The respondent received no requests for medical reports of her own choice in terms of section 12(b) of chapter 4 of educators Act 76 of 1998 despite being advised accordingly, if she wished to object.
23. Page 52 of bundle R is a letter to the applicant informing her that her application for retirement due to ill – health has been approved and requesting her to complete Z864, Z894, Z583, choice form, exit interview template and notice of termination form. The applicant duly complied.
24. Page 51 of bundle R contains the approval letter to the applicant on her application for ill – health retirement.
25. Upon the request of the above documents, the applicant’s pension was processed.
26. The respondent still supports the applicant with her medical needs as evidenced by a report dated the 19th of March 2025, from Doctor Malumane.
CROSS EXAMINATION
27. There are two ways of putting a person on ill – health retirement. There is a voluntary one and the one initiated by the employer. In this case, they followed the second method. They followed this method based on two medical opinions from Doctors Malumane and Mabote. The respondent acted in chapter 4, item 12. If the employee was not satisfied, she could nominate own medical practitioner. The applicant did so only after termination.
28. After the applicant received the notice of termination, she came to the office to interrogate the report of the occupational therapist. However, she should have brought her own doctor’s report. If there was an objection and a third report submitted, there would be an enquiry, and a decision would follow thereafter. The applicant did receive a copy of the report.
29. When it was put to him that according to a physiotherapist report, the applicant can still perform her duties he said that latter provides rehabilitation but cannot declare the applicant fit or unfit for her work.
MS SUSAN MABUNDA TESTIFIED AS FOLLOWS UNDER OATH
30. She works as an occupational health officer at Mopani district for the respondent. The applicant sustained an injury on duty in August 2010, for which she received one hundred and forty thousand rand (R140 000.00) from the Department of Labor.
31. While on duty injury, she was involved in a motor accident on the 9th of July 2012, which left her with multiple injuries. Her health deteriorated. She asked to be converted into an administrator post, however, owing to the circular 4 313 of 2011, this could not be done as it prohibited such a move. Further to that, she was transferred from Gawula High School to Edward Homo High School. Later she applied to be moved to Rehlabile primary school to lessen her workload. In 2023 she applied for the reopening of her case so that the implants could be removed from her ankle. This did not improve her situation. The second operation was done in 2024 on the same leg. At that point, a wheelchair was provided for her.
32. During this period, she was transferred to Ntsalama Primary School as per her request. The latter’s principal complained that the applicant did not report for work, while on the other hand the school was unable to get a replacement educator. At this school, she worked only for about two weeks, hence the principal was concerned about the shortage of educators.
33. As a result of her absence from work, the respondent decided to send her for functionality assessment with Doctor Mabote. When the report came, Mr. Masuluke showed her the report, and a copy was given to her shortly thereafter. The applicant indicated to her at that stage that she intended to object. This was after she received the notification. She is currently still handling her medical reviews, transportation and any devices that may need to be paid, and as it stands, she will be supported till her death.
34. Page 26 of bundle R contains the report of Doctor Malumane (orthopedic surgeon) which shows that after the 9th of July 2012 accident, her situation worsened, and he recommended as follows:
“On the 9th of July 2012, she was involved in a motor accident resulting in a comminuted right ankle fracture, left hemopneumothorax and multiple impaired functions and is physically unfit to continue working as an educator”
35. Page 46 of bundle R is Doctor Mabote’s report that says the following:
“The prognosis by the treating doctor is poor. She still requires more time for treatment before she can be ready to resume for duty if ever. Ms. Mabasa is employed as HOD, and her job requires regular standing and walking. She cannot stand without external support as she is to put weight on the left foot. Use of crutches hamper free use of her hands to do other tasks. She risks further fall and injuries if she can force abandoning another crutch. In her current condition, she will not be able to work as an educator unless her treatment is revised. She can be considered for ill-health retirement”
36. This report was sent to HR to invoke boarding procedures. Once the applicant received the notice, she came to the office and Mr. Masuluke advised her to object if she wished. She indicated that she wished to object and that is why she gave her the report. However, she never submitted an objection.
37. The respondent relied on chapter 4, item 12 of the educators Act to terminate the applicant’s contract of employment.
38. She sees for the first time the physiotherapist’s report on page 106 of the bundle A, at the current hearing. It is dated the 20th of May 2025.
39. Under cross examination, she confirmed that the applicant came to view the occupational therapist report and later came to collect a copy. Further that the applicant was given reasonable accommodation as she was transferred to the schools she requested, she was given medical assistance, and electrical wheelchair was acquired for her.
MR KGANDI KHOMOTSO MATETE TESTIFIED UNDER OATH AS FOLLOWS
40. He is a deputy Director in the safety, health, environmental risk and quality assurance division.
41. He confirmed that they received a complaint from the school where the applicant worked on the issue of replacement educators due to her absence from work. He confirmed that he called the applicant to his office and explained to her that in the circumstances, she would be taken to an occupational therapist for functionality assessment. He explained to her further that if she needed to object, she could appoint her own specialist. The applicant was assessed and report issued.
42. Page 34 of bundle R contains a letter in which she complaint of a wheelchair, and same was bought for her. Page 30 of bundle R is a recommendation of a wheelchair by Doctor Malumane.
43. At page 31 is a report by Doctor Malumane which records “poor prognosis post removal of implants left tibia, ankle and foot”. Page 33 of bundle R is a medical report of a consultation dated the 18th of September 2024 which records progress and further treatment as “poor prognosis” and as “unfit for work”.
44. The applicant still receives medical assistance, transport, and pensionable salary from the respondent.
45. As far as he is concerned, a proper procedure was followed.
46. Under cross examination, he confirmed that the applicant was given reasonable accommodation including not retiring earlier to ensure that she receives her pension and other benefits.
SUMMERY OF EVIDENCE FOR THE APPLICANT
MS SOLANI REINETH MABASA TESTIFIED UNDER OATH ON HER BEHALF AS FOLLOWS:
47. She was employed by the respondent in January 2007 as a PLI educator. In July 2008, she was employed at Edward Homo High School as a CS2 educator (HOD).
48. On the 6th of August 2010, she sustained an injury on duty and got injured on her left leg. She received medical attention at Nkhensani Hospital. When her leg did not improve, she consulted a specialist, Doctor Malumane, who diagnosed her with a leg drop and reflex sympathetic dystrophy. After showing no improvement, she was booked for an ankle operation. After that she was booked off sick from August 2010 to December 2011. In 2012, she was redeployed to Gawula High school.
49. In July 2012, she was involved in a car accident and sustained multiple injuries including right ankle dislocation, broken ribs, hemopneumothorax, broken jaw and whiplash. She was booked off sick from July 2012 to December 2013. At that stage, Doctor Malumane recommended that she be transferred to an administrator officer post. She received no response upon application, therefore. On intervention by SADTU, she was told that her salary scale was too high.
50. In 2014, she asked to be redeployed to Rehlabile Secondary School, which was granted. She worked there from January 2014 to December 2022 without any risk of falling. In 2023, she was redeployed to Ntsalane Primary School by request, to lessen her workload.
51. On or about the 7th of August 2024, she received a letter titled ‘conversion from injury on duty ill – health retirement at the age of 55’ in which the respondent informed her that the occupational therapist recommended that she be retired on ill- health and that she should complete the necessary forms. She was not consulted. On the 8th of August 2024, she wrote to SADTU to inform them of the situation. In the end, SADTU regional secretary Mr. Mudau told her that the respondent wants her out due to long absence from work.
52. She did not ask for retirement at all. She contacted Mr. Masuluke and complained about her predicament she would find herself if she was retired. Since she was recovering, she expected to go back to teaching but Mr. Masuluke insisted that she should complete the forms. On the 21st of August 2024, she received a reminder to complete the forms. She regards the letter as an ultimatum.
53. In taking a decision to terminate her, the respondent relied on the 2012 Doctor’s report. However, there were progress reports that she submitted. In the end, she received a letter of termination in November that she will be terminated on the 31st of December 2024.
54. On page 106 of bundle A is a report by a physiotherapist who had to determine if there was a risk of fall. The said report says she can work with one crutch and does have a balance.
55. She insisted that she was not given an opportunity to obtain an opinion `of a medical practitioner of her choice before a termination was done.
56. She conceded that although she did not receive advice in writing, she did speak to Mr. Masuluke. The latter did not advise her of her rights to seek an opinion of her own medical practitioner.
57. Doctor Malumane’s report says the wound has healed and she can work.
ANALYSIS OF EVIDENCE AND ARGUMENTS
58. In this matter, dismissal is common cause hence the onus to prove that the said dismissal was fair both procedurally and substantively reverts to the respondent. See in this regard Section 192 of Labour Relations Act 66 of 1995 as amended. The respondent does so on a balance of probabilities. This is achieved by weighing up the version of the applicant against that of the respondent. The one that is more probable wins the day. See in this regard Early Bird Farms (PTY) LTD v. Mlambo [1997] BLLR 541 (LAC), at 544.
59. It is common cause that the applicant was dismissed on ill – health incapacity. However, the applicant contends both procedure and substantive unfairness of the said dismissal.
PROCEDURE
60. The applicant contested the fairness of the procedure followed in terminating her. Specifically, she testified that she was not consulted and nor given an opportunity to state her case.
61. The respondent led evidence to show that in terminating the applicant, it followed chapter 4 of Employment of Educators Act 75 of 1998:
Section 12(1) thereof provides that:
a) Whenever there are reasonable grounds for believing that an educator is incapable of carrying out the duties attached to the educators post on account of continuous ill- health, the employer may appoint a team of examiners of at least two medical practitioners to examine the educator at the state’s expense and to report on the educator’s state of health.
b) An educator is entitled to nominate any other medical practitioner of the educator’s choice and at the educator’s own expense as a member of the team of examiners.
It is common cause that the applicant was notified of the intention of the employer to terminate her on ill – health incapacity once it received the reports of Doctors Malumane and Mabote. The evidence also shows that the applicant attended a meeting with Mr. Masuluke and Ms. Mabunda. Both confirm that the applicant was advised to nominate her own medical practitioner of her choice as part of the team in case she wished to object. Ms. Mabunda testified that she told her that she was going to object. Further that Mr. Malete also testified that he called the applicant to his office to explain to her the procedure involved and that she could also object and appoint her own medical practitioner. This evidence was not disputed. Further that the applicant confirmed the above meetings. In addition, and with regards to a meeting with Mr. Masuluke and Ms. Mabunda, the applicant asked for a copy of Doctor Mabote’s report which she confirmed was given to her. The two witnesses testified that it was given to her on the basis that she wished to object. The objection was never submitted.
62. In the circumstances, can it be said that she was not consulted nor given an opportunity to state her case? The evidence shows that she was consulted and had she objected and submitted her medical practitioner’s report, a hearing would have been convened. But there was no objection. I am on the view that the respondent followed a procedure that is prescribed and was fair in the circumstances.
SUBSTANTIVE FAIRNESS
63. In the case of Hendrichs v. Mercantile &General Reinsurance 1994 ILJ 304 (LAC) the Court stated that the substantive fairness of a dismissal based on incapacity due to ill-health, depends on the question whether the employee can fairly be expected to continue in the employment relationship, bearing in mind the interests of the employee and the employer and the equities of the case. The Court stated further that the other factors to be considered include the nature of the incapacity, the cause of the incapacity, the likelihood of recovery, and the likelihood of improvement or indeed – recurrence. The period of absence and its effect on the employer’s operations must also be considered as well as the effect of the employee’s disability on other employees.
64. The evidence shows that after receiving the complaint from Gawula High school and Ntsalama primary school of long absence from work by the applicant, the respondent sent the applicant to the Occupational Therapist for functionality assessment. The applicant also conceded to the long absence from work due to ill – health arising from her injuries, the last one before termination being about eighteen months while at Ntsalame Primary school. These complaints were arising from the school’s inability to get replacement educators while the applicant was away.
65. On the 16th of March 2012, Doctor Malumane diagnosed the applicant’s injuries resulting from her on duty injuries as follows:
• Left paraneal nerve palsy
• Reflex sympathetic dystrophy left lower limb
• Fusion left Ankle following left foot drop.
This was when the doctor was motivating that the applicant to be translated into an administration officer position. I will return to this point later.
66. On the 27th of May 2013, Doctor Malumane issued another progress report following injuries in an accident and stated that “On the 9th of July 2012, she was involved in a motor vehicle accident resulting in a comminuted right ankle fracture, left hemopneumothorax and multiple rib fractures. She has multiple impaired functions and is medically unfit to continue working as an educator.”
67. On the 26th of April 2023, Doctor Malumane described her prognosis as poor post removal of implants left tibia, ankle and foot. On the 18th of September 2024, Doctor Malumane after consultation with her described her prognosis as poor.
68. Doctor Mabote in her report states at paragraph 14 the following:
“Ms. Mabasa sustained dislocation left ankle with peroneal nerve palsy. She had ankle joint arthrodesis which failed due to infection. She currently has chronic left tibia Osteitis. She has limited range of left ankle joint movement. She cannot weigh bear on her left foot due to shortened Achilles tendon and pain. She currently has chronic left tibia Osteosis with associated soft tissue infection resulting in slow wound healing.
She cannot stand on her left foot and has poor standing endurance. She has functional upper limbs. The prognosis by the treating doctor is poor. She still requires more time for treatment before she can be ready to resume for duty if ever. Ms. Mabasa is employed as HOD and her job requires regular standing and walking. She cannot stand without external support as she is unable to put weight on the left foot. Use of crutches hamper free her hands do other tasks. She risks further fall and injuries if she can force abandoning another crutch. In her current condition, she will not be able to work as an educator, unless the treatment is revised. She can be considered for ill – health retirement.”
69. Based on Doctor Malumane’s report and her own observations, she believed it will be better for the applicant to be given ill – health retirement. Is this conclusion irrational as alleged? Looking at all the facts, especially the treating specialist where he says the prognosis is poor, I conclude the conclusion is rational.
70. I have analyzed the physiotherapist’s report the applicant submitted in evidence. She describes current fractional limitations as follows:
She is unable to participate in sports activities due to left foot drop deformity and ankle stiffness.
She is unable to drive a manual car due to severe left foot drop deformity and stiffness.
Difficulty in dressing and undressing herself in standing due to compromised balance caused by left foot drop deformity and weakness of the left ankle/foot muscles.
She is unable to walk more than two kilometers long distance.
My view is that the description bears little relevance to the classroom the applicant must undertake daily. While I do not reject it, I put less value in comparison with the reports from Doctors Malumane and Mabote. Both have corroborated with each other to say that the applicant is no longer medically fit to perform the work of an educator.
71. Was the applicant offered reasonable accommodation? The applicant argued that she should have been given administration officer position. However, the respondent led evidence to show that it was impossible with the limitation brought by circular 313 of 2011 which proscribed such a move. The applicant in her evidence acknowledged this.
Secondly, it is common cause that the applicant was transferred to various schools at her request to lessen her travelling distance and her workload. This in my view amounts to reasonable accommodation.
Thirdly, the respondent led evidence to show that when the applicant’s long absence from work was initially investigated, it was found that she has less than ten years of service with the respondent. A decision was made not to medically board her at the time as she would have lost her pension and other benefits. The applicant has not disputed this fact. I agree with the respondent that this amounts to reasonable accommodation.
Fourthly, evidence shows that the applicant is currently receiving medical assistance and will do so until death.
72. Consequently, I conclude that the termination of the applicant was substantively fair.
AWARD
73. I find that the dismissal of the applicant was substantively and procedurally fair.
74. The applicant’s claim therefore fails.
M P SHAI
THE PANELIST
