IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case no: ELRC740-24/25GP

In the matter between:

MOHITSHANE KGADI EAGLET
(Union / Applicant)

And

GAUTENG DEPARTMENT OF EDUCATION
(Respondent)

INTRODUCTION

1. The matter was scheduled for arbitration before me over several sittings, the last sitting being on 24 July 2025. The Applicant, Ms Mohitshane Kgadi Eaglet (“the Applicant”), was represented by Advocate Mphahlele. The Respondent, the Gauteng Department of Education, was represented by Mr Muleki Mafuya, an official of the Department. The Applicant referred a dispute contending that her dismissal for incapacity was procedurally and substantively unfair.
2. The arbitration proceeded via Microsoft Teams, and the proceedings were recorded electronically and in writing.

ISSUE TO BE DECIDED

3. I must determine if the dismissal of the Applicant by the Respondent was procedurally and substantively fair.

BACKGROUND

4. The Applicant was employed by the Respondent as a P1 educator in 1985. She left the Respondent’s employ and thereafter resumed in January 2015. The Applicant was dismissed by the Respondent o 27 October 2024 for medical incapacity. At the of the dismissal the Applicant earned a salary of R39 193,75. The Applicant would like to be retrospectively reinstated as she contends her dismissal was procedurally and substantively unfair.

SURVEY OF EVIDENCE AND SUBMISSIONS

5. Mr. Avheani Thingashangwi, who is employed as an Assistant Director in the PILAR Unit, testified regarding the process followed in relation to incapacity leave. He explained that incapacity leave is granted at the discretion of the employer and may take the form of short-term leave (1–29 days) or long-term leave (30 days or more). Incapacity leave may also be converted into ill-health retirement, depending on the medical reports that accompany an application.
6. The witness stated that once an employee applies for incapacity leave, the application together with all supporting medical documents is submitted to the Department’s appointed health risk managers, Proactive Health Solutions. These health risk managers assess the documentation and provide an outcome. The outcome may be an approval, partial approval, or a rejection of the application. If approved, the outcome is communicated to the employee together with the recommendations of the health risk managers. If partially approved, it means some of the days applied for are granted while others are declined, in which case the employee may submit additional medical information. If declined, the employee has the option of submitting new medical reports.
7. He testified further that incapacity leave can lead to ill-health retirement were recommended by the health risk managers. In such cases, a pre-termination letter is issued and sent via the district office to the employee. Where the employee disagrees with the recommendation, the matter is not finalised but instead referred to the Labour Relations division for an incapacity hearing. This was the procedure followed in respect of the present matter concerning the applicant, Ms. Muhitsani.
8. Mr. Thingashangwi confirmed that the applicant had applied for long-term incapacity leave covering a total of 49 school days. The district office processed and verified the application before forwarding it, together with the medical reports, to the health risk managers. Following their assessment, the health risk managers recommended that the applicant be placed on ill-health retirement, and this recommendation was reflected in the outcome letter marked R51. The witness explained that the Department has no discretion to deviate from the recommendations of the health risk managers, as its role is simply to implement the outcomes based on the documentation submitted.
9. Although the applicant contended that she was fit to continue working, the witness pointed out that the decision to medically board her was based on the medical evidence she had submitted at the time of the assessment, rather than her present circumstances. He emphasised that he is not a medical practitioner and therefore could not personally evaluate her health. He added that once a report has been issued by the health risk managers, it is final for purposes of that application and may not be revisited unless fresh medical information is submitted in a new application.
10. Finally, the witness noted that an employee’s incapacity has a direct impact on the employer. A substitute teacher must be appointed to continue teaching duties, and this places a financial burden on the Department as the substitute must be paid while the incapacitated employee remains on the payroll. In the applicant’s case, her assessment with the health risk managers was concluded on 28 November 2023, and they confirmed that she be placed on ill-health retirement.
11. Under cross examination, the witness testified that, in terms of the Pilir Policy, the employer is not obliged to seek a second medical opinion once the employee’s reports have been referred to the health risk managers. In this matter, although the applicant had applied for long-term incapacity leave, the health risk managers recommended that she be placed on ill-health retirement. The witness emphasised that such a recommendation is not reversible.
12. He explained that if an employee has been terminated on grounds of ill-health, the employee may submit fresh medical reports through the Head of Department to support a request for re-employment, but such decisions are dependent on the availability of vacancies. Where a recommendation for termination has been made, the Department proceeds with termination unless the employee produces new reports confirming recovery. However, no new reports can be considered at the time the original application is assessed; the decision is made strictly on the medical documentation submitted at that stage.
13. It was put to the witness that the applicant’s doctor advised her to stop dialysis because her kidneys had returned to normal. The witness responded that, at the time of the assessment, the Department acted fairly in relying on the reports then available, which formed the basis of the health risk managers’ recommendation. Any subsequent medical evidence could not alter the decision once it had been finalised. He noted that, even if recovery was established in June 2024, this could not have been considered when the application was submitted and processed, leading to the applicant’s termination in September 2023.
14. The respondent’s second witness was Dr. Fundile Nyathi, a qualified medical practitioner who obtained his qualification in 1989 in the field of health medicine. He testified that he is employed by Pro-Active Health Solutions as a medical advisor and has, in that capacity, been appointed as an advisor to the Department of Basic Education on incapacity leave and ill-health retirement matters. Pro-Active Health Solutions has been in the industry for over 25 years and provides advice to the Department of Education on applications for incapacity leave and ill-health retirement. He explained that it was on the basis of the advice provided by his office that the applicant was terminated.
15. According to his evidence, the role of the health risk managers is to evaluate all applications for temporary incapacity leave and ill-health retirement once an employee has exhausted their sick leave entitlement. Temporary incapacity leave is governed by rules distinct from those applying to ordinary sick leave, and it may only be applied for once sick leave is fully exhausted within a cycle. He emphasised that the onus rests on the applicant to submit all relevant medical information, including reports from treating medical practitioners, to enable a full and proper assessment.
16. In this case, the applicant applied for long-term incapacity leave covering 49 school days. Dr Nyathi explained that in assessing long-term incapacity leave, the health risk managers consider the severity and nature of the illness, the prognosis (including whether recovery is possible), and whether the employee could continue working with reasonable accommodations. The applicant, a 63-year-old senior teacher, applied for incapacity leave on the basis of her medical condition, renal failure requiring dialysis.
17. The applicant submitted medical reports, including one from her specialist nephrologist, Dr. Mahlangu, dated 11 October 2023. The reports confirmed that she was suffering from end-stage renal failure, the last stage of kidney disease. Her symptoms included anaemia, leg swelling, high potassium levels, acidity in the blood, weakness, and fatigue. She also had hypertension and diabetes. The condition meant that her kidneys could no longer filter blood or remove toxins, which not only compromised her physical health but also her cognitive functioning, leading to “brain fog” and difficulty concentrating.
18. Dr. Nyati testified that these symptoms severely affected the applicant’s ability to perform her duties as a teacher, which required lesson preparation, classroom management, discipline, and continuous interaction with learners at full cognitive capacity. The applicant was dependent on haemodialysis twice a week He explained that dialysis does not restore normal functioning: patients are often fatigued, cognitively impaired, and emotionally drained both during and after treatment, which disrupts their ability to work consistently.
19. On the basis of the medical evidence provided, the health risk managers concluded that the applicant suffered from a permanent and irreversible condition and was therefore totally and permanently incapacitated. Dr. Nyati stated that no reasonable alternatives or accommodations could enable her to perform her teaching duties. While in some cases alternatives may exist, such as redeployment with assistance, the applicant’s condition did not permit such options. For that reason, a recommendation was made for her early retirement on ill-health grounds.
20. He further explained that the assessment was conducted in accordance with departmental policy, specifically clause 7.3.5.1, which provides that if sufficient medical information is submitted by the treating doctor, a secondary assessment is not required. In the applicant’s case, the information submitted by Dr. Mahlangu was comprehensive and sufficient to enable a conclusive recommendation. As a result, the health risk managers recommended that the applicant be boarded on ill-health retirement, and this recommendation was conveyed to the employer.
21. During cross-examination, the witness testified that the applicant’s application for incapacity leave was not an application for employment equity (EEA). He explained that EEA considerations apply only to established disabilities under employment equity frameworks, which was not the case here. The role of the health risk managers is to provide recommendations to the Department of Education, but the final decision rests with the Department itself. The recommendations are based on all the information provided, including reports from the treating doctor and other health professionals. He denied that the recommendation was based solely on medical opinion, stating instead that it was grounded in the detailed reports provided by the applicant’s nephrologist.
22. It was put to him that an occupational therapist had expressed the view that the applicant could continue working with accommodations. He disagreed, explaining that while OTs provide useful perspectives, their opinions cannot override medical findings in cases of severe illness. He noted that the applicant suffered from post-dialysis syndrome, which leaves patients unwell after dialysis sessions and directly affects their capacity to function. In his view, the applicant was not physically well, took an unusually long time to complete tasks, and faced cognitive challenges. He emphasised that any accommodations suggested must be reasonable, and in this case the recommendations made by the OT were not reasonable as they would impose undue pressure on the employer.
23. The witness maintained that the applicant’s condition—end-stage renal failure—was irreversible and lifelong. He testified that while he could not comment on her life expectancy, her medical condition was not curable and would require dialysis or a transplant indefinitely. When it was put to him that the applicant had last undergone dialysis in February 2025 under the care of a new nephrologist who had taken a different view, he stated that he found this difficult to accept given the prognosis made by Dr. Mahlangu. He added that, if the applicant wished to rely on a different medical view, she ought to have produced another nephrologist’s report to support such a claim.
24. He reiterated that the medical risk assessors base their findings strictly on the documentation submitted by the treating doctor. They may, in some cases, refer a matter to another specialist if the evidence is unclear. However, in this case, the report from Dr. Mahlangu was comprehensive, credible, and sufficient. There had therefore been no need for referral to another doctor.
25. Finally, the witness testified that although Dr. Mahlangu had referred the applicant to an occupational therapist, the OT’s report was internally contradictory, ventured outside the proper scope of assessment, and did not adequately evaluate the applicant’s medical condition. He concluded that the OT’s report was unreliable and could not be given weight in determining the applicant’s incapacity.
26. The applicant, Ms. Mohetsane, testified that she had received a letter from the Department signed by the Head of Department, stating that she had been terminated. She explained that she did not initially understand what the letter was about. She confirmed that she had taken sick leave in 2023 after being admitted to hospital for approximately one month, during which she was diagnosed with a kidney disease. While in hospital she also struggled with high blood pressure, diabetes, and was subsequently diagnosed with kidney disease. She was discharged in July 2023 and thereafter applied for incapacity leave when she was placed on dialysis. She applied for incapacity leave as she was unwell and not in a position to continue with her work.
27. The applicant testified that she attempted to return to work in February 2024, shortly before undergoing surgery on her arm for dialysis treatment. Following the surgery, she was referred to an occupational therapist who recommended that she perform light duties because of the state of her arm. After the arm healed, she was able to use it again and her condition improved. She stated that she attended a meeting with the Department in July 2024 but was unable to attend an earlier hearing as she was still in hospital at that time. She further explained that she was called to an incapacity hearing at the district office on 28 May and 30 June 2024, but she did not respond to one of the letters of invitation because she was hospitalised. She later attended the incapacity hearings and was dismissed pursuant thereto. She however refused to sign the termination letter as she disagreed with its contents.
28. She explained that at the time she is much better but was no longer on dialysis. Her treatment had been changed by Dr. Mahala, who altered her medication and, as a result, her body was better able to regulate fluids. Her condition improved and she felt better than she had in 2023. According to her, Dr. Mahlangu did not state that her condition was permanent, although another doctor, Dr. Nyathi, had suggested that it was. She testified that she herself did not understand issues of permanency or stages of kidney disease.
29. The applicant explained that during consultations with her earlier nephrologist, Dr. Mahlangu, he had indicated that she could resume her duties in January 2024. He did not raise the issue of permanency with her, and when she followed up with him in September 2024, he told her that her termination was a decision of the Department and that he could not intervene. She confirmed that by then she was no longer on dialysis. At the time of her dismissal, she was teaching Grade 5 learners and was attending classes, although still regaining her strength. She testified that her arm injury did not prevent her from carrying out her classroom duties.
30. The applicant maintained that she had never been permanently disabled and that her kidneys were functioning well according to Dr. Mahala. She explained that although the occupational therapist had initially recommended adjustments because of her arm, the situation later improved and she was able to manage her responsibilities. She insisted that the health risk assessors had not followed up with Dr. Mahlangu to verify her condition and instead relied on their interpretation that she was suffering from end-stage renal failure. In her view, they ought to have sought a second opinion from her treating doctor, which would have shown that her condition was improving.
31. She testified further that at the time of her dismissal she was able to attend class and was receiving dialysis twice a week, on Mondays and Fridays, which she stated did not interfere with her ability to work. It was put to her that in terms of the Employment of Educators Act 76 of 1998, the employer was obliged to appoint an independent medical practitioner to assess her condition before terminating her services. She testified that this had not been done and that her own doctors, including Dr. Mahlangu, had indicated that she was capable of returning to work.
32. It was also put to the applicant that during the period in question she had been continually teaching at a full-time school, and she was asked to provide evidence confirming her attendance. She replied that while there were months she had missed because she was unwell, she had nevertheless been at school in February, March, and October 2024. She acknowledged that she had been absent at times due to illness but maintained that she had resumed her duties when she was able.
33. The applicant further stated that the occupational therapist had recommended that she receive assistance during the period when she was recovering from her arm operation. However, once her arm had healed, she no longer required such assistance. She testified that her condition had improved, she had regained strength and no longer needed an assistant teacher.
34. She also confirmed that she had received a report from Dr. Mahlangu in January 2024, and another medical note via WhatsApp the day before the hearing. She emphasised that during the scheduled hearing she was hospitalised, bedridden, and unable to attend. She explained that while she sought the benefits due to her as an employee, she also wished to continue teaching and to be able to contribute positively to her learners.
35. The applicant’s second witness was Ms. Lily Setati. She testified that she had been employed in Tembisa together with the applicant and had retired in January 2025. She had worked with the applicant in the language department since 2015. She stated that the applicant stopped working at the school at the end of October 2024. According to her, the applicant was a very good teacher, cooperative, and reliable. She confirmed that the applicant had fallen ill in 2023 but, after being discharged from hospital, returned to work and continued to perform satisfactorily. The applicant submitted her work on time and carried out her duties as required.
36. The witness further testified that although the applicant was assisted by an assistant teacher, she herself conducted the teaching. The applicant would attend dialysis after school, leaving at around 2:15pm, and would return to school the following day, usually Tuesday, where she continued to perform well. Ms. Selati testified that there were no challenges with the applicant’s work and that she was aware the applicant had been dismissed. She nonetheless described the applicant as a good performer and a reliable teacher.
37. During cross-examination, it was put to the witness that her evidence appeared to focus on performance rather than incapacity and that the matter before the arbitration related to the applicant’s health. She confirmed that she understood this but reiterated that in her experience the applicant’s performance had remained good. It was further put to her that the medical specialists were better placed to testify about whether the applicant could continue to work given her health condition. The witness repeated that the applicant’s teaching work had remained of a good standard and that she was able to continue with her duties. She explained that the applicant came to school after dialysis sessions and managed to teach without difficulty.
38. It was also put to the witness that she had no independent evidence to substantiate her assertion that the applicant was performing well, beyond her own observations. The witness nonetheless maintained that the applicant was a good performer, that she did her job well, and that she was able to carry out her responsibilities as expected.
39. The applicant’s last witness was Dr. Bonginkosi Mahala, a physician and nephrology specialist. He testified that the applicant had been referred to him after she had already been placed on chronic dialysis twice a week and dismissed on the basis of earlier medical reports. He explained that the applicant’s diagnosis of stage 5 renal failure had initially been aggravated by an acute illness at the time, which necessitated dialysis. However, in his care her condition began to stabilise and improve.
40. Dr. Mahala testified that by February 2025 the applicant’s kidney function was “recovering beautifully” though not completely. Her creatinine levels, which at one stage were at 230 (well above the normal range of 53–97), had improved significantly. As a result, she was able to stop dialysis and had been off dialysis for five months. He emphasised that this demonstrated that the condition was not irreversible in her case, and that she was not permanently disabled. He explained further that while she suffered from chronic kidney disease, she still retained all her mental faculties and was able to perform her duties as a teacher. In his view, she could have been accommodated with minor adjustments, as her dialysis regime only affected her on specific days.
41. He was critical of the process followed by the Department. He stated that the recommendation that the applicant was terminally disabled was incorrect, and that the Department should have referred her to a specialist nephrologist for assessment rather than relying on a junior doctor’s report. He testified that the conclusion that she was permanently incapacitated was irresponsible and not supported by her medical profile.
42. Under cross-examination, it was put to him that the Department’s incapacity process was based on reports submitted in 2023 and that his testimony was based on later developments in 2025, which were not available to the Department at the time. Dr. Mahala conceded that he had not seen all the reports submitted in 2023 but insisted that even then, the applicant was not permanently disabled, only affected by chronic kidney disease. He emphasised that the fact of being on dialysis does not automatically mean that a person is incapacitated to the extent of permanent disability.
43. It was further put to him that the Department relied on a multidisciplinary report and that the decision had to be judged on the information available at the time. He disagreed, stating that the recommendation was wrong even then, because the applicant could have continued to work. He accepted that he did not have extensive documentation before the commissioner apart from his recent medical note, but he maintained that the applicant had never been disabled and that she was able to continue working while managing her illness.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

44. The dispute concerns whether the termination of the applicant’s employment on the grounds of ill-health was fair in terms of both substance and procedure. The respondent’s case is that the Department followed the prescribed incapacity process, relied on the assessment of its appointed health risk managers, and acted fairly on the medical evidence before it at the time. The applicant contends that she was not permanently incapacitated, that her condition improved, and that she could still perform her duties.
45. The evidence of Mr. Thingashangwi established that the applicant’s long-term incapacity leave application was duly submitted to the health risk managers, Pro-Active Health Solutions. They assessed the documentation, including reports from her treating nephrologist, and recommended that she be retired on ill-health grounds. Once such a recommendation is made, the Department has no discretion but to act on it unless new medical evidence is formally submitted. This was confirmed by Dr. Nyati, who testified that based on the reports of the treating nephrologist, the applicant was diagnosed with stage 5, or end-stage, renal failure. He explained that this condition is severe and typically irreversible, with both physical and cognitive consequences that make teaching duties impossible. He dismissed the occupational therapist’s contrary recommendations as unreliable, inconsistent, and outside scope. On his evidence, the decision to retire the applicant on ill-health grounds was medically justified.
46. The applicant testified that her condition improved after a change in treatment by Dr. Mahala, and that even prior to her termination for medical incapacity, who had already been back in class and teaching the learners and fulfilling her duties, though with some limitations. She stated that she eventually came off dialysis and that her condition was not permanent. This was supported in part by her colleague, Ms. Setati, who described her as a good performer and reliable teacher. However, Ms. Setati’s evidence focused on classroom performance rather than medical incapacity, was not supported by independent evidence, and therefore does not assist materially in determining the applicant’s incapacity.
47. The applicant’s last witness, Dr. Bonginkosi Mahala, a specialist nephrologist, who testified that her renal failure had been aggravated by an acute illness and that her kidney function later improved significantly. He explained that her creatinine levels, which had once been as high as 230, had improved, and by February 2025 she had been able to stop dialysis for several months. He was critical of the Department’s reliance on earlier reports and argued that the decision to board her was incorrect. In his view, dialysis does not amount to permanent disability, and she could have been accommodated with minor adjustments. However, this evidence has limited weight in assessing the fairness of the employer’s decision. Much of Dr. Mahala’s testimony concerned developments in 2025, long after the decision to terminate was taken in September 2024. He conceded that he had not seen all of the 2023 reports submitted to the Department and placed little contemporaneous documentation before the Commissioner. The respondent, on the other hand, acted on the medical reports then available, which indicated that the applicant was suffering from end-stage renal failure and undergoing dialysis.in my view and having regard to the evidence before me, the Department reasonably concluded that she was no longer able to perform her duties. Later improvements in her condition cannot retrospectively render the dismissal substantively unfair.
48. The Applicant has sought to place reliance on section 7 of the EEA read with Item 3 (3)(a) of Schedule 1 of the Employment of Educators Act, Act 76 of 1998 in contending that the dismissal was unfair. In my view once the Health Risk Manager recommended ill-health retirement and the Department elected to proceed with an incapacity termination, the regime in Schedule 1 to the Employment of Educators Act became operative. Item 3(3)(a) read with section 7 of the Employment Equity Act obliged the employer to appoint at least one registered medical practitioner to examine the Applicant at State expense and report on the nature, extent and likely duration of her incapacity. On the evidence, the Department implemented the HRM recommendation and convened the incapacity process but did not commission a separate employer-appointed examination. Reliance on the treating nephrologist’s reports and the HRM’s report and findings, without more, did not meet the peremptory requirement in Item 3(3)(a). Although the hearings were otherwise fairly managed and were postponed to accommodate the Applicant’s hospitalisation, the failure to procure the statutory examination denied the Applicant the safeguard contemplated by Item 3(3). That omission constitutes a procedural defect which undermines the procedural fairness of the dismissal.
49. The respondent has shown that the termination was substantively fair, however there was procedural flaw in failing to adhere to the provisions of Item 3(3)(a) of Schedule 1 to the Employment of Educators Act became and that the applicant was treated unfairly in the process. The dismissal was therefore substantively fair but procedurally unfair. The Respondent is therefore ordered to pay the Applicant compensation equivalent to three months’ salary in an mount of R117 581,25 (R39 193,75 x 3) on or before 20 September 2025.

AWARD

50. The Applicant’s dismissal by the Respondent was procedurally unfair but substantively fair.
51. The Respondent is ordered to pay the Applicant compensation equivalent to three months’ salary in an amount of R117 581,25 on or before 20 September 2025. [Parties were to submit payslip

Dated at Johannesburg on this 26th Day of August 2025.

Nzwisisai Dandadzi