THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable
Case N o: JR 2790- 21

In the matter between
NATIONAL HEALTH LABORATORY SERVICES Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
NAMISILE KHESWA N.O Second Respondent
HAPPY KGOTLENG MOLOTSI Third Respondent
Heard: 12 December 2024
Delivered: 07 May 2025
Summary: Penalty review of Arbitration Award – The commissioner’s
decision to reinstate the employee without backpay and to impose a 12- month
final written warning is reasonable, given that the employee’s failure to physically return to work during the COVID- 19 pandemic arose from his status
as a highly vulnerable individual .

JUDGMENT

2

SWARTZ , AJ

Introduction
[1] This is an application to review and set aside the arbitration award dated 8
December 2021, issued under the first respondent’s (CCMA) case number
GAJB23284- 20 (the award), by the second respondent (the commissioner), in terms
of section 145 of the Labour Relations Act
1 (LRA).
[2] The commissioner found the dismissal of the third respondent (Happy
Kgotleng Molotsi – Mr Molotsi ) substanti vely unfair and ordered reinstatement
without backpay and subject to a final written warning for 12 month s.
[3] This is a penalty review wherein the applicant , National Health Laboratory
Service ( the NHLS) , seeks an order in terms of which the award is reviewed,
corrected, and set aside , alternatively , that the dispute is remitted back to the first
respondent for adjudication by another commissioner.
[4] The charges brought against Mr Molot si, which culminated in his dismissal,
arose at the height of the COVID -19 pandemic. This is a material consideration, as it
serves to contextualise the factual matrix of this matter .
Factual background
[5] The factual milieu is mostly common cause.
[6] Mr Molotsi was employed by the NHLS on 1 November 2016. At the time of
his dismissal, he held the position of IT Project Manager. Mr Molotsi was dismissed
on 28 October 2020.


1 Act 66 of 1995, as amended.
3
[7] On 9 September 2020, Mr Molotsi faced a disciplinary hearing on four
charges of misconduct for (i) Absence without authorised leave; (ii) Failure to follow
lawful instructions ; (iii) Failure to follow the NHLS’s Risk Assessment Outcome ; and
(iv) Failure to follow the NHLS Code of Conduct and Employment Contract.

[8] The national lockdown in South Africa, declared due to the COVID- 19
pandemic, began on 27 March 2020, following a state of disaster declaration on 15
March 2020.

[9] Following the lockdown, the NHLS allowed its employees to work from home
for several weeks, until 1 June 2020, when all employees were instructed to return to
the office in person. At the end of June 2020, Mr Molotsi was diagnosed with advanced chronic kidney disease and hypertension, as confirmed by Dr Mashabane’s medical certificate dated 6 July 2020. Consequently, he underwent a urological procedure on 3 July 2020 and was placed on sick leave until 13 July 2020.
[10] On 9 July 2020, Mr Molotsi submitted a certificate of illness from Dr
Mashabane, referred to above, to Ms Keitumetse Boikanyo (Ms Boikanyo) working in
the Human Resources (HR) department of the NHLS. This certificate stated inter alia
that:
‘Mr. HK Molotsi has been under my care for a period of 1 month. He suffers
from hypertension and advanced chronic kidney disease. He is currently
being considered [for] chronic renal replacement therapy.
Based on his underlying co- morbid conditions, it is my professional opinion
that M r. HK Molotsi is a vulnerable employee in terms of the guidance on
vulnerable employees and workplace accommodation in relation to COVID- 19
pandemic -19.
I therefore strongly recommend that he be allowed to work from home pending company policy and criteria. ’

[11] On the same day , Ms Boikanyo responded to Mr Molotsi stating inter alia that:
‘Please be advised that as per the D r's note, their recommendation would be
dependent on the C ompany Policy and criteria.
4
There's a risk assessment that needs to be done by you and your Manager to
determine the risk / danger that you might be exposed to by physically being
at the office. The application will all depend on the scoring of that assessment .
Dear Sister Magasa and S ister Potgieter , may you kindly assist with the risk
assessment form and advise further. ’

[12] The risk assessment form was duly sent to Mr Molotsi and his line manager,
Ms Marcia Kwapa (Ms Kwapa). The NHLS required them to determine Mr Molotsi’s
appropriate exposure risk group. Based on this assessment, a risk score would be calculated, which would then inform the decision to be made. On Friday, 10 July
2020, Ms Kwapa informed Mr Molotsi that they would complete the risk assessment
exercise together on Monday, 13 July 2020, the day he was due to return to work
following the conclusion of his sick leave.

[13] On 13 July 2020, Mr Molotsi did not return to work, asserting, inter alia , that
he was unable to do so due to his comorbidities. He further contended that other employees without comorbidities were working from home, and in any event, he was
able to perform all his duties remotely .
[14] A series of emails exchanged between Mr Molotsi and either Ms Boikanyo or
Ms Kwapa between 13 and 23 July 2020 reflects that :
14.1 Mr Molotsi was unhappy to have Ms Kwapa evaluate his risk
assessment ;
14.2 Ms Kwapa was dissatisfied with his failure to return to work and
insisted that he do so, pending the outcome of his risk assessment and the
NHLS’s remote working policy ; and
14.3 Mr Molotsi contended that the NHLS’s protocol regarding working from
home was not aligned with Annexure A of the COVID- 19 Occupational Health
and Safety Directive, that he was being harassed into returning to work and
that other employees were being allowed to work from home without
undergoing a risk assessment .

5
[15] Thereafter , the union and the Occupational Health and Safety (OHS)
committee got involved, and Mr Molotsi was instructed to comply with undergoing his
risk assessment.

[16] On 29 July 2020, Ms Kwapa sent an email to Mr Molotsi at 8:18 am
demanding that he physically return to work by 10:00 am that day , failing which she
would ‘take the necessary action in line with NHLS Conditions of Employment ’.
[17] On 4 August 2020, at 3:40 pm, a Zoom meeting request was sent by the
NHLS to Mr Molotsi for a Z oom meeting at 9:00 am on 5 August 2020, the subject
being “ Risk Assessment – Mr Happy Molotsi ”. At 5:59 pm on the same day , Mr
Molotsi responded to all the recipients on the Z oom meeting request , informing them
inter alia that:
17.1 He was unavailable for the meeting as he had already been scheduled
to attend a standing meeting;
17.2 He stated that he could not be a party to conducting the risk
assessment himself, as it could only be carried out by the nurse after
reviewing the input data he had already provided to the HR and OHS
committee. Accordingly, there was no need for a meeting to complete the risk
assessment ;
17.3 He stated that he had submitted his medical documentation to HR, and
that HR had not indicated whether any further information was required by the
risk assessor ; and
17.4 He criticised the role of the HR department in his risk assessment
process, suggesting that it had not been handled appropriately or
transparently .

[18] As noted in his email dated 5 August 2020, Mr Molotsi did not attend the
scheduled risk assessment meeting held via Zoom. As a result, the assessment
proceeded in his and Ms Kwapa’s absence, without the benefit of all relevant
information. Nevertheless, the assessment was completed on the same day, and Mr
Molotsi was classified as a medium -risk employee, scoring a 6. He was
subsequently informed that, based on this outcome, he was required to return to the office and resume his duties on site.
6

[19] Following receipt of the risk assessment outcome on 5 August 2020, Mr
Molotsi sent an email to Nurse Magasa, who had led the assessment, and to the
NHLS CEO, Mr Karmani Chetty (Mr Chetty). In this email, he stated his intention to
invoke clause 49 of the Direction issued by the Minister of Employment and Labour
in terms of Regulations 4(10) (the Regulations ). He also expressed concern that
contracting COVID- 19 could be fatal due to his medical condition, stating that he was
in the ‘ ...last stage of kidney disease and also [ had] uncontrolled diabetes and
hypertension with heart arrhythmia’ . Mr Molotsi was subsequently booked off on sick
leave from 6 to 7 August 2020. Despite the outc ome of the assessment, he
continued to work from home remotely .

[20] On 27 August 2020, Mr Molotsi received a letter from the NHLS Employee
Relations Specialist , which, inter alia , issued an ultimatum requiring him to report for
duty by no later than the close of business on 31 August 2020. The letter stated that failure to comply would be regarded as wilful intent and a repudiation of his contract of employment, resulting in the termination of his services without further correspondence. Mr Molotsi contends that he was not paid for the month of August
2020.

[21] On 31 August 2020, Mr Molotsi was served with a notification to attend a
formal disciplinary hearing scheduled for 9 September 2020. The chairperson of the hearing found him guilty on all four charges but recommended that the NHLS offer appropriate support through the Employee Assistance Programme (EAP) within
seven days of the outcome. It was further recommended that, should Mr Molotsi
refuse the assistance of the EAP, his employment be terminated.

[22] Mr Molotsi informed the EAP consultant that he did not agree with any
aspects of the referral, except those relating to his health. He expressed the view
that the process was punitive.

[23] On 22 October 2020, the EAP consultant communicated the above to the
NHLS and requested that further engagements be held. However, no such engagements took place, and Mr Molotsi was dismissed on 28 October 2020.
7

[24] Mr Molotsi thereafter referred an unfair dismissal dispute to the CCMA.

NHLS’s submissions
[25] The founding affidavit identifies the ground of review as the commissioner’s
conclusion that, despite finding Mr Molotsi guilty of misconduct, dismissal was too severe a sanction and therefore inappropriate. The NHLS contends that this conclusion is unreasonable. It further argues that the commissioner failed to give due consideration to its disciplinary policy, which expressly states that refusal to comply with reasonable instructions may warrant summary dismissal .
[26] The NHLS bases this ground in its founding affidavit, inter alia , on the
assertion that Mr Molotsi :
26.1 Wilfully refused to attend the risk assessment on 5 August 2020
despite being advised of the need for such an assessment ;
26.2 Deliberately ignored the NHLS’s lawful and reasonable instructions to
return physically to the workplace and undergo the assessment ;
26.3 Even after the disciplinary outcome persisted in refusing to comply with
the outcome’s recommendations of attending the EAP;
26.4 As he attended the disciplinary hearing in person and returned to work
on 31 August 2020, following the NHLS’s repudiation letter, this implied that he was physically capable of attending the workplace;
26.5 He was in breach of clauses 1.2 and 6.2.3 of hi s contract of
employment ; and
26.6 He showed no regret and had a negative attitude towards his line
manager .
Mr Molo tsi’s submissions
[27] In the answering affidavit , Mr Molotsi alleges that the award is reasonable in
that the commissioner duly considered the totality of the circumstances and the inappropriateness of the sanction of dismissal. The commissioner’s award is
8
rationally connected to the evidence and is reasonable, taking into account the
components of rationality and proportionality.
[28] In the answering affidavit , Mr Molotsi ’s version is inter alia that:
28.1 He di d not refuse the EAP offered by the NHLS and recommended by
the chairperson, however , this recommendation was not appropriate as this
was not a performance issue, and Ms Mata from the NHLS conceded that the
NHLS did not follow up with the EAP’s consultant ’s recommendation to find a
way forward;
28.2 The NHLS disregarded clauses 17 and 18 of the Regulations gazetted
on 4 June 2020;
28.3 He had clearly communicated to the NHLS that he did not feel safe
returning to work in person, as any exposure to the virus could have been fatal for him. Nevertheless, the NHLS disregarded his concerns and persisted inappropriately in requiring him to attend a risk assessment ;
28.4 It is denied that he refused to undergo a risk assessment and the sister
who attended the risk assessment was not qualified to do so;
28.5 The nature of his role did not require his physical presence in the
workplace, and he was able to perform all his duties from home. His conduct was not detrimental to the NHLS. Furthermore, the NHLS demonstrated a lack of empathy for his medical condition during the COVID- 19 pandemic and
could have reasonably accommodated him, which may have led to a different outcome;
28.6 He did not refuse to attend the risk assessment on 5 August 2020.
Rather, on 4 August 2020, he informed the NHLS that he was unavailable at
the scheduled time due to a prior work commitment and outstanding queries.
Despite this, the NHLS proceeded with the assessment in his absence without addressing his concerns or rescheduling the meeting; and
28.7 The NHLS ignored clauses 48, 49, 53 and 54 of the Regulations , and
he should not have been disciplined, let alone dismissed, for refusing to
physically attend at the workplace.

[29] Accordingly , the award was reasonable, and the review application ought to
be dismissed.
9

This Court’s analysis of the evidence

[30] This matter, and the events that unfolded between June 2020 and Mr
Molotsi’s dismissal on 28 October 2020, must be understood in the context of the
height of the COVID- 19 pandemic , a period during which the global population was
deeply traumatised and gripped by fear of infection. This context is critical to my analysis .
[31] The analysis set out below is based on the transcript and the arbitrati on
bundle, and is distinct from my evaluation of whether the award is susceptible to review .
[32] Having carefully considered and analysed the transcript and the arbitration
bundle, it is, in my view, evident from the record that Mr Molotsi harboured a genuine fear of returning to the workplace during the height of the COVID- 19 pandemic, due
to his multiple comorbidities. I am further of the opinion that the NHLS acted irrationally and unreasonably in refusing to permit him to work from home, and that
his dismissal was unfair. This opinion is based on the evidence contained in the
transcript and arbitration bundle.

Mr Molotsi’s medical condition
[33] Mr Molotsi testified that he suffered from stage 5 renal failure (the most
severe stage) . This is where his kidneys are nearing or at complete failure, and
dialysis or a transplant may be necessary. He further testified that s uch a condition
destabilises the heart and the lungs. Over and above t his condition, he was also
diagnosed with an irregular heartbeat , diabetes, stones in the bladder and
hypertension.
[34] Mr Molotsi’s medical conditions were never disputed by the NHLS . The
arbitration bundle contained medical certificates from Dr Jankelow (cardiologist), Dr
Bielu (general practi tioner) , Dr Glocer (Urologist) and Dr Mashabane (specialist
10
physician/nephrologist2). It was common cause that he had a urological procedure
on 3 July 2020.

[35] During the disciplinary hearing on 9 September 2020, the chairperson even
remarked that ‘…he looked like he was in pain and he looked very unhealthy the way
I looked at him, I thought maybe he needed to be helped ’ and ‘…he didn’t look
healthy, he sort of looked a bit, at a person that doesn’t look as if he’ s actually
healthy…’. Further, Ms Kwapa, Mr Mo lotsi’s line manager , conceded during cross -
examination that he was a highly vulnerable employee.

[36] Throughout his evidence, Mr Molotsi repeatedly emphasised that he was
afraid returning to work in person would expose him to the risk of contracting C OVID -
19. Given his various comorbidities, he believed this would likely result in his death.
It was clear that he held a sincere and deeply held belief that returning to the
workplace would be fatal, a view he expressed unequivocally throughout the
arbitration.
Mr Molotsi’s job at the NHLS
[37] Mr Molotsi was the NHLS’s IT Project Manager. Since the hard lockdown ,
which commenced on 27 March 2020 , he worked from home, and after he had an
operation on 3 July 2020, he continued to work from home. As he stated, ‘… we still
had emails, we could have telcon meetings , she could contact the clients, everything
was working as per, as I was in the office … So there was nothing that changed,
everything was working fine and there were no issues ’.
[38] Unlike the laboratory employees, there was no operational need for Mr
Molotsi to be physically present at the workplace. During cross -examination, Ms
Kwapa , despite being the one demanding Mr Molotsi physically come back to work
and that disciplinary action be taken against him, conceded that the IT department is

2 A medical doctor who speciali ses in the diagnosis, treatment, and management of diseases and
conditions affecting the kidneys .
11
a functional department and that in functional departments, core people can work
from home.

[39] Apart from the period during which he was booked off sick, he consistently
performed all his duties remotely, and it is common cause that there were no
concerns regarding the quality or completion of his work. Despite this, the NHLS
unilaterally deducted his salary in August and October 2020. Furthermore, his
substantial accrued leave was not taken into account .

[40] Mr Molotsi contended that other NHLS employees , such as inter alia ‘Debra’
and ‘Stacey ’, were working from home and that they had not been required to
undergo any risk assessments. He contended that he was being treated unfairly and
differently by having his line manager , Ms Kwapa , demanding that he physically
return to work. These allegations were not contested by the NHLS . The only
feedback given to Mr Molotsi in this regard was from Ms Boikanyo from HR on 13
July 2020, when she stated in an email , ‘I am not sure about the arrangement with
the below employees. I am/was not involved in their working arrangements, I was not
consulted ’.
The risk assessment
[41] The transcript clearly reflects that Mr Molotsi did not agree with the necessity
of a risk assessment. His understanding was based on information provided by
Nurse Aida prior to the NHLS requiring him to undergo such an assessment. According to her, a doctor’s recommendation was sufficient for the NHLS to allow him to work from home. Nurse Aida explained that a risk assessment was only necessary where an issue needed to be identified. However, if an employee had already obtained a medical report recommending remote work, no further assessment was required, as the doctor’s report served as adequate proof. She further advised that, should there be any doubt about the report, the NHLS had the option of referring the employee to a doctor of its own choosing for further evaluation.

12
[42] The transcript makes it clear that the NHLS maintained the position that Mr
Molotsi could only work from home if a risk assessment was conducted and the
outcome supported such an arrangement. This assessment required the
participation of both the employee and the line manager. Although Ms Kwapa initially insisted that Mr Molotsi present himself in person for the assessment with her, she
later conceded during cross -examination that the assessment did not, in fact, need
to be conducted face- to-face.

[43] On 5 August 2020, the risk assessment was conducted via Zoom without the
participation of either Ms Kwapa or Mr Molotsi, in direct contravention of the risk
assessment policy, which required the involvement of both parties. It is evident from
the email correspondence that Mr Molotsi did not refuse to attend the assessment
scheduled for that date. Rather, on 4 August 2020, he informed the participants that he was unable to attend due to a prior commitment and enquired whether any further information was required from him. This suggests that he was under the impression the assessment would be postponed. The participants proceeded with the meeting without informing Mr Molotsi that it would go ahead regardless, and no request for
additional information was made. Notably, during cross -examination, Nurse Magasa
admitted that she had not read Mr Molotsi’s emails sent on 4 August 2020.
[44] Dr Chin, a medical practitioner employed by the NHLS, explained that the risk
exposure to COVID- 19 and being classified as a vulnerable employee are two
separate and distinct considerations. He testified that exposure to C OVID -19 poses
a significantly heightened risk to vulnerable employees, potentially resulting in
hospitalisation or even death. Dr Chin further clarified that an employee who is able
to perform their duties , regardless of vulnerability , is not regarded as temporarily
incapacitated.

[45] The risk assessment, conducted in the absence of both Mr Molotsi and Ms
Kwapa, concluded that although Mr Molotsi was classified as a highly vulnerable
employee, his exposure risk was assessed as medium, with a score of 6—
categorised as ‘Acceptable risk (low to medium) – can come to work’. The
assessment also explicitly stated: ‘Any other arrangement outside the risk assessment must be discussed between an employee and a line manager’. On 5
13
August 2020, upon receiving the final outcome of the risk assessment, Mr Molotsi
emailed Nurse Magasa, copying Mr Chetty, the CEO of the NHLS , expressing his
disappointment, articulating his fear of dying if required to return to work, and
notifying them of his intention to invoke clause 49 of the Regulations. Despite this email, and notwithstanding the assessment’s express stipulation regarding
alternative arrangements, neither Mr Chetty nor any other senior NHLS official took
steps to engage with or address Mr Molotsi’s concerns. As a result of his unresolved
fear of dying, Mr Molotsi did not return to the workplace.
[46] Extensive correspondence followed between Mr Molotsi and various NHLS
role-players regarding this issue. This ultimately led to the NHLS issuing a
repudiation letter dated 27 August 2020, in which it stated, inter alia , that his refusal
to return to work constituted a repudiation of his contract of employment. Mr Molotsi
subsequently returned to work on 31 August 2020, after which he was served with a notice to attend a disciplinary hearing.
[47] Ultimately, the correspondence makes it clear that Mr Molotsi was not
opposed to undergoing a risk assessment but was simply unable to attend at the
scheduled time and date. Given that neither party had previously navigated the complexities of C OVID -19, it is understandable that there may have been differing
interpretations of the risk assessment policy and procedure. However, what is particularly striking is the NHLS’s rigid adherence to its interpretation of the policy, to the apparent exclusion of Mr Mol otsi’s repeated and sincere expressions of fear for
his life should he be required to return to work in person. This lack of consideration
for his perspective reflects a failure to engage meaningfully with his concerns .

Contract of employment and the repudiation letter
[48] The NHLS’s repudiation letter, which alleges that Mr Molotsi repudiated his
contract of employment by failing to return to the workplace, as well as the assertions in the founding affidavit that he was in breach of clause 1.2 - stipulating
that his place of work is the NHLS Sandringham offices , and clause 6.2.3 - allowing
for termination in the event of breach are misplaced.

14
[49] In determining the fairness of Mr Molotsi’s dismissal, it is essential to look
beyond the mere question of contractual breach. Fairness requires a contextual and
balanced assessment of the surrounding circumstances, including the unprecedented nature of the C OVID -19 pandemic, Mr Molotsi’s medical vulnerability,
his consistent communication of genuine fear for his life, and the NHLS’s rigid
interpretation of internal policies. The failure to accommodate his concerns and the
procedural shortcomings in how the risk assessment was handled raise serious
questions about whether the dismissal met the standard of substantive fairness required from the LRA .

The Direction by the Minister of Employment and Labour in terms of Regulations
4(10) ,3 (the Regulations ), Return to Work Framework NHLS Guideline (Framework)
and Guidance on vulnerable employees and workplace accommodation in relation to
Covid -194 (the Guidance)

[50] In this Court’s view , the NHLS was indeed in breach of the above
Regulations , Framework and Guideline in force at the time of the events leading to
Mr Molotsi ’s dismissal .
The Regulations
[51] Clause 17.1 provides that all employers must undertake a risk assessment in
terms of clauses 20.1 to 20.3 of the Regulations .
[52] Clause 20.3 provides that the risk assessment ‘ …must take special measures
to mitigate the risk of COVID -19 for vulnerable employees in accordance with the
Department of H ealth's Guidelines to facilitate their safe return to work or they
working from home’.


3 Direction by the Minister of Employment and Labour in terms of Regulation 4(10) of the Regulations
R480 of 29 April 2020 issued by the Minister of Cooperative Governance and Traditional Affairs in
terms of Section 27(2) of the Disaster Management Act. 2002 Gazetted 4 June 2020.
4 Guidance issued by the Department of Health on 25 May 2020.
15
[53] Clause 48 provides ‘ An employee may refuse to perform any work if
circumstances arise which with the reasonable justification appear to that employee
or to a health and safety representative to pose an imminent and serious risk of their
exposure to COVID -19’. While Mr Molotsi did not refuse to perform his duties, he
declined to do so at the office. Moreover, the relevant clause clearly provides that
either the employee or the health and safety representative must be reasonably
justified in believing that such performance would result in exposure. Mr Molotsi ,
based on his comorbidities and the medical recommendation from Dr Mashabane
dated 6 July 2020, which states, ‘ I therefore strongly recommend that he be allowed
to work from home pending company policy and criteria’, was justified in exercising
his right not to work from the office.
[54] Clause 49 provides ‘ An employee who has refused to perform work in terms
of clause 48 must as soon as reasonably practicably notify the employer either
personally or through a health and safety representative of the refusal and the reason for the refusal. Every employer must, after consultation with the compliance officer and any health and safety committee, endeavour to resolve any issue that
may arise from the exercise of the right in terms of clause 48’ . The correspondence
clearly demonstrates that Mr Molotsi consistently communicated his fear of returning
to the office to HR, Ms Kwapa, and other relevant parties. The correspondence
further i ndicates that the NHLS made no meaningful attempt to address Mr Molotsi ’s
concerns. Instead, it adhered rigidly to its own narrow interpretation of the risk assessment. Had HR and/or Ms Kwapa engaged with Nurse Aida, or taken the time
to meaningfully consult with Mr Molotsi , the NHLS might have come to appreciate
the depth of his genuine fear of dying if required to return to the office, despite his
assessed level of exposure to C OVID -19 being considered low /medium .
Furthermore, Ms Kwapa conceded during cross -examination that the nature of the IT
department’s work was, in fact, conducive to remote working.
[55] Clause 50 provides , ‘Clause 48 applies whether or not the person refusing to
work has used or exhausted any other applicable external or internal procedure’ .
[56] Clause 54 provides , ‘No employee may be dismissed, disciplined, prejudiced
or harassed for refusing to perform any work as contemplated in clause 48’ . Mr
16
Molotsi was dismissed, disciplined and prejudiced for refusing to return to the office –
that is to perform his work at the office. The NHLS is clearly in breach of clause 54 of
the Regulations .
[57] Clause 55 provides ‘ If there is a dispute as to whether clause 49 has been
contravened, the employee may refer the dispute to the Commission for C onciliation,
Mediation and Arbitration or an accredited bargaining council for conciliation and
arbitration in accordance with the procedures contained in section 191 of the L abour
Relations Act, 1995 (A ct No.66 of 1995) ’. Following receipt of the risk assessment,
Mr Molotsi , on 5 August 2020, informed Mr Chetty and Nurse Magasa, inter alia , of
his intention to invoke clause 49 of the Regulations . Nevertheless, and in apparent
disregard of the provisions of clause 54 of the Regulations, the NHLS persisted in disciplining and taking issue with Mr Molotsi ’s failure to physically return to the
workplace.
The Framework

[58] Clause 1(iv) of the Framework provides , ‘Participation in exploring, presenting
and suggestion of alternative is key for speedy buy -in by those affected’ , and clause
1(v) provides , ‘During this crisis period consistency should be workplace specific not
national, since a “one size fits all” approach will not be ideal ’.
[59] Clause 4(iv) of the Framework provides that ‘All efforts must be made to
ensure staff work from home where practical. Those working from home, should
produce weekly performance reports which are consistent with expected
performance’ . Clause 4(viii) provides ‘ Employer to explore various meaningful and
“temporary ” accommodation of categories of highly vulnerable staff who are working
in the high risk environments ’.

[60] Although Mr Molotsi was not working in a high- risk environment, such as a
laboratory, the fact that he was a highly vulnerable employee who feared for his life if
required to return to the workplace ought to have been given serious consideration by the NHLS. Both Ms Kwapa and Dr Chin conceded, under cross -examination, and
the risk assessment itself confirmed that Mr Molotsi was indeed a highly vulnerable
17
employee. Yet, rather than making any effort to reasonably accommodate him, the
NHLS chose instead to impose punitive measures in pursuit of an inflexible and
unreasonable position .
[61] The clauses of the Framework quoted above clearly afforded the NHLS the
discretion to reasonably accommodate Mr Molotsi , an opportunity it chose not to
exercise .
The Guidance
[62] Under the slide ‘ RIGHTS, ROLES AND RESPONSIBILITIES’, and under the
heading ‘EMPLOYEE’ , it states, ‘Right to remove themselves from a work situation
which they have reasonable justification to believe presents an imminent and serious
danger to their life or health, without undue consequences ’. This guidance mirrors
clause 48 of the Regulations .
[63] Mr Molotsi conducted himself i n accordance with this Guideline.

The suspensive condition in the disciplinary outcome: Mr Molotsi must attend the
NHLS’s Employee Assistance Programme (EAP)

[64] The chairperson’ s disciplinary hearing finding inter alia stated that
‘Furthermore, should you refuse to take assistance offered by the NHLS then the
dismissal sanction is awarded’ .
[65] The commissioner’s finding in paragraph 108 of the award, that Mr Molotsi
failed to honour his part of the agreement to attend the EAP , is not supported by the
evidence. A review of the correspondence, along with the testimony of Mr Rampta (the chairperson of the disciplinary hearing), confirms that Mr Molotsi did not refuse to attend the EAP. Mr Rampta himself testified that HR had provided him with a letter stating as much. Furthermore, it is evident from a letter dated 5 October 2020 from Mr Molotsi’s attorney, as well as an email from Ms Mata (the EAP consultant), that Mr Molotsi did attend an EAP session, although he expressed disagreement with
18
certain aspects of the process. In response, Ms Mata requested that the NHLS
suggest a way forward.

[66] Mr Molotsi ’s objection to being referred to the EAP was based on the fact that
his concern related not to performance, but to a health matter , an area outside the
EAP’s scope . Nevertheless, the NHLS once again declined to engage with Mr
Molotsi further and proceeded to issue his dismissal letter on 28 October 2020.
This Court’s conclusion after considering the record
[67] As previously noted, this matter must be contextualised within the fearful and
unprecedented period of the C OVID -19 pandemic. It is regrettable that Mr Molotsi ’s
various health conditions deteriorated during this time. From this Court’s analysis of
the record, it is abundantly clear that the NHLS’s instructions and demands for Mr Molotsi to physically return to work were unreasonable.
[68] The NHLS disregarded the provisions of the Regulations, its own Framework,
and the Guidance. In the Court’s view, it demonstrated a complete lack of empathy
or regard for Mr Molotsi’s health conditions, and its conduct was regrettable.

[69] Notwithstanding the above, and even prior to the implementation of various
COVID -related legislative measures and directives, the International Labour
Organi sation (ILO) has, for decades, recognised an employee’s right to safeguard
their life when there is reasonable justification to believe that the workplace
environment poses a threat to their health or life.

[70] The right of an employee to refuse to do work that is unsafe and poses a
serious danger is recogni sed internationally. During 1981, the parties to the ILO
adopted the Convention on Occupational Safety and Health (No. 155); article 13 states:
‘A worker who has removed himself from a work situation which he has
reasonable justification to believe presents an imminent and serious danger to
his life or health shall be protected from undue consequences in accordance with national conditions and practice. ’
19

[71] It is regrettable that Mr Molotsi did not file a cross -review to challenge the
commissioner’s findings that he was guilty as charged and that no backpay should
be awarded. I am mindful, however, that regardless of my own views, this Court’s
role is confined to determining whether the review should succeed. I am not at liberty
to grant relief beyond that which has been sought.

[72] What follows is my analysis of the ground of review. The Court’s earlier
observations do not form part of this review analysis but were included to convey its strong disapproval of the manner in which Mr Molotsi, a highly vulnerable employee
during the COVID -19 pandemic, was treated by the NHLS .

Analysis of the review application
[73] As a Court of review, its role is not to re- decide the matter , but to determine
whether the commissioner 's decision was reasonable, taking into account the totality
of circumstances, including the nature of the misconduct, potential harm, and the impact on the employee.
[74] The commissioner found that Mr Molotsi ’s dismissal was substantively unfair
and ordered reinstatement without backpay , subject to a final written warning for 12
months.
[75] In terms of section 193(1) and (2) of the LRA , reinstatement is the primary
remedy where a dismissal is found to be unfair unless the circumstances set out in section 193(2) are present.
5 They are not present here.
[76] In essence, the NHLS challenges the award on the ground that, although the
commissioner found Mr Molotsi guilty of the charges, she nevertheless reinstated
him, albeit without backpay. The NHLS contends that this constitutes an unreasonable outcome and is therefore subject to review. As stated above, this is a
penalty review .

5 See: Booi v Amathole District Municipality and Others (2022) 43 ILJ 91 (CC) at paras 53 - 62.
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[77] The starting point is the relevant portions of i tem 3 of The Code of Good
Practice: Dismissal p rovides:6
77.1 Item 3(4) provides that ‘ generally, it is not appropriate to dismiss an
employee for a first offence, except if the misconduct is serious and of such
gravity that it makes a continued employment relationship intolerable…’ ;
77.2 Item 3(5) provides, in turn, that ‘ when deciding whether or not to
impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself ’; and
77.3 Item 3(6) provides that “ the employer should apply the penalty of
dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more
employees who participate in the misconduct under consideration ’.
[78] The Constitutional Court judgment of Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
7 is the locus classicus judgment on penalty reviews.
The Court (per Navsa AJ) held:
‘[116] However, the commissioner was wrong to conclude that the
relationship of trust may have not been breached. Mr Sidumo was employed to protect the Mine’s valuable property which he did not do. However this is
not the end of the inquiry. It is still necessary to weigh all the relevant factors together in light of the seriousness of the breach.
[117] The absence of dishonesty is a significant factor in favour of the
application of progressive discipline rather than dismissal. So too, is the fact that no losses were suffered. That Mr Sidumo did not own up to his misconduct and his denial that he received training, are factors that count against him. His years of clean and lengthy service were certainly a significant factor. There is no indication that the principle of progressive discipline will not

6 Code of Good Practice: Dismissal , Schedule 8 of the LRA .
7 2008 (2) SA 24 (CC) at paras 116 – 117 and 119.
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assist to adjust Mr Sidumo’s attitude and efficiency. In my view, the
commissioner carefully and thoroughly considered the different elements of
the Code and properly applied his mind to the question of the appropriateness
of the sanction.
…
[119] To my mind, having regard to the reasoning of the commissioner,
based on the material before him, it cannot be said that his conclusion was
one that a reasonable decision maker could not reach. This is one of those
cases where the decision- makers acting reasonably may reach different
conclusions. The LRA has given that decision- making power to a
commissioner. ’
[79] In National Union of Metal Workers of South Africa obo Cloete v Trentyre
(Pty) Ltd and others
8, the employee, a general worker, was dismissed for being
under the influence of alcohol at work on an isolated occasion. The commissioner found the sanction of dismissal unfair and ordered the employee to be reinstated on a final written warning with the forfeiture of backpay . The company succeeded on
review , with the decision of the commissioner being replaced with an order that the
employee ’s dismissal was substantively fair. On appeal to the Labour Appeal Court
(LAC) , the C ourt reversed the L abour Court's judgment and restored the award.
Having found that the employee was under the influence of alcohol, but not to the extent that he could not perform his duties, Z ondo JP concluded:
9
‘In the light of the above can it be said that the commissioner’s decision that
the sanction of dismissal was too harsh and his order that the appellant be
reinstated are unreasonable in the sense that they are decisions that a
reasonable decision- maker could not reach? In my view that can certainly not
be said on these facts and circumstances. If I had sat at a commissioner I
would definitely have also found that dismissal as a sanction was too harsh in
the circumstances of this case. ’10


8 [2016] JOL 35706 (LAC) (Trentyre).
9 A Myburgh, C Bosch, Reviews in the Labour Courts, at p 287 – 288.
10 Trentyre supra at para 15.
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[80] In light of the foregoing, and while this Court is of the view that the
commissioner ought not to have found Mr Molotsi guilty of the charges, it is
nonetheless evident that she exercised her discretion judiciously, having regard to the particular circumstances of the matter. In doing so, she effectively concluded that dismissal would constitute an unduly harsh sanction. Although not explicitly
referencing item 3 of the Code of Good Practice: Dismissal, the commissioner’s
reasoning reflects a clear appreciation of its principles and the applicable case law
concerning appropriate sanctions. She gave due consideration to the fact that Mr Molotsi had no prior record of similar misconduct, was a particularly vulnerable employee, and that corrective discipline, rather than dismissal, was the more
appropriate and proportionate response.

[81] In the circumstances, I am satisfied that the decision arrived at by the
commissioner is one that a commissioner confronted with the evidence presented at
the arbitration could reasonably have arrived at. The decision is reasonable based on the evidence before the commissioner , and as such, the award should not be set
aside.

Costs

[82] Section 162 of the LRA grants this Court a discretion to make cost orders
according to the requirements of the law and fairness. This means this Court is not
bound to follow the general rule of costs follow the result. Instead, this Court may
make a costs order according to the requirements of the law and fairness .
[83] The conduct of the parties is particularly relevant where considerations of
fairness arise. As previously outlined under the heading ‘ This Court’s Analysis of the
Evidence’ , I criticised the manner in which the NHLS treated Mr Molotsi during the
unprecedented and deeply unsettling period of the C OVID -19 pandemic. In my view,
the NHLS was treated with leniency, having been ordered merely to reinstate Mr Molotsi without any award of backpay .
[84] Notwithstanding the arbitration award, the NHLS nevertheless delayed Mr
Molotsi’s reinstatement by pursuing a review application which, lacked substantive
23
merit. It is also worth noting that the NHLS, as a leading institution during the
COVID- 19 pandemic, ought to have set an example in the fair and compassionate
treatment of vulnerable employees. While I am mindful that the failure of the review
means the reinstatement order remains in force, thereby preserving the ongoing
employment relationship between the parties , considerations of law and fairness in
these circumstances support the conclusion that the NHLS should bear the costs of
this application.
[85] In the result, the following order is made:

Order
1. The review application is dismissed.
2. The applicant is to pay the third respondent’s costs .

S. Swartz
Acting Judge of the Labour Court of South Africa

Appearances
For the Applicant: Mr X Mofokeng
Instructed by: HM Chaane Attorneys Inc.
For the Third Respondent: Mr R Maddern
Instructed by: Wright Rose- Innes Inc.