Not Reportable
THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN
Case no:C103/2023
In the matter between:
PSA obo RANDOLPH VAN WYK Applicant
and
DEPARTMENT OF SOCIAL
DEVELOPMENT: WESTERN CAPE
PROVINCIAL GOVERNMENT
PUBLIC HEALTH AND SOCIAL
DEVELOPMENT SECTORAL
BARGAINING COUNCIL
COMMISSIONER JP HANEKOM
First Respondent
Second Respondent
Third Respondent
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Date of Hearing: 27 June 2025
Date of Judgment: 29 September 2025
This judgment was handed down electronically by circulation to the parties’
legal representatives by email, publication on the Labour Court website and
release to SAFLII. The date and time for handing down judgment is deemed to
be 10h00 on 30 September 2025.
JUDGMENT
BARTHUS AJ
Introduction
The Applicant launched this review application in terms of s145 of the Labour
Relations Act 66 of 1995 (LRA) to set aside the award issued by the Third
Respondent (“the Arbitrator”) under the auspices of the Second Respondent .
The Applicant is seeking retrospective reinstatement.
Nothing more than a Notice to Oppose the review application and a
Postponement Application was filed by the First Respondent.
Preliminary issues
[1] The First Respondent sought a postponement on the day of the hearing
despite conceding that the Applicant has waited a significant time to obtain
a hearing date in this matter since the review application was launched in
March 2023. The notice of set down was served on the First Respondent
on 22 April 2025.
[2] It was submitted on behalf of the First Respondent that there would be no
significant prejudice to the Applicant if the matter were postponed. The
reason for the request to postpone is that Counsel had become
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unavailable due to a vacation for which travel arrangements were made on
6 May 2025.
[3] The Applicant opposed the application to postpone the matter , noting that
there has been a 2-year and 3- month waiting period to have the matter
heard. The First Respondent did not tender costs and attended Court
without a mandate to tender such costs.
[4] The First Respondent did not file any opposing papers in the review , nor
were heads of argument filed. The First Respondent’s attitude clearly was
that if there was no counsel present to argue the matter on the day , then
the matter would be hamstrung, and a postponement would have to be
granted.
[5] The First Respondent is essentially seeking a postponement to file
answering papers in the review , which is outrageous. That the Applicant
would suffer prejudice if the postponement were granted is self-evident.
[6] The review application was filed 56 days late. The condonation application
is unopposed. The Applicant tendered a detailed explanation for the late
filing of the review application, which was satisfactory. The Applicant
demonstrated that there are reasonable prospects of success and has
shown that it is in the interests of justice to grant the condonation.
[7] I now turn to deal with the review application.
Contextual Background
[8] The Applicant was employed as a senior Administration Clerk with the
First Respondent since December 2008 and was promoted in 2014 to the
position of Administrative Officer.
[9] Due to alcohol dependency , a major depressive disorder (“MDD”) and
physical health issues , the Applicant was absent from work for various
periods between 2018 and 2021.
[10] The Applicant voluntarily admitted himself for rehabilitation at Crescent
Clinic in April 2018 and received psychiatric treatment from Dr Paul Vos
since 2018. In his 2022 Report, Dr Vos confirmed that the Applicant
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suffered Deep Vein Thrombosis and pulmonary embolism in 2019, which
resulted in a relapse of his MDD. Increased dosages of medication were
administered, and the Applicant achieved partial remission until he
relapsed in 2021.
[11] On 18 March 2021, the First Respondent conducted an informal
disciplinary inquiry and issued a final written warning for unauthorised
absenteeism during November 2020 and March 2021.
[12] On 23 March 2021, the Applicant’s supervisor referred the Applicant to
the Employment Wellness Programme (EWP). The EWP report revealed
that the Applicant attended 4 counselling sessions during April and May
2022. Before the EWP report was released, the Applicant was absent from
work from 19 May 2021 to 28 May 2021, and a formal disciplinary process
was instituted.
[13] The Applicant was dismissed for unauthorised absenteeism. The Applicant
challenged the substantive and procedural fairness of the dismissal , citing
his alcohol addiction and the First Respondent's election to follow the
misconduct route instead of the incapacity route.
Grounds of Review
a) Gross irregularity by mischaracterising the dispute
[14] The Applicant asserts that the Arbitrator committed a gross irregularity by
treating the dispute as one of misconduct rather than one of incapacity
arising from alcoholism.
[15] The Applicant argued that the Arbitrator was required to assess the
fairness of the dismissal under the guidance of Ite ms 10 and 11 of the
Code of Good Practice: Dismissal Schedule 8 of the LRA , which provides
the following:
“10. Incapacity: Ill health and injury.—
(1) Incapacity on the grounds of ill health or injury may be temporary or
permanent. If an employee is temporarily unable to work in these
circumstances, the employer should investigate the extent of the
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incapacity or the injury. If the employee is likely to be absent for a time that
is unreasonably long in the circumstances, the employer should
investigate all the possible alternatives short of dismissal. When
alternatives are considered, relevant factors might include the nature of
the job, the period of absence, the seriousness of the illness or injury and
the possibility of securing a temporary replacement for the ill or injured
employee. In cases of permanent incapacity, the employer should
ascertain t he possibility of securing alternative employment or adapting
the duties or work circumstances of the employee to accommodate the
employee’s disability. (2) In the process of the investigation referred to in
subsection (1) the employee should be allowed the opportunity to state a
case in response and to be assisted by a trade union representative or
fellow employee. (3) The degree of incapacity is relevant to the fairness of
any dismissal. The cause of the incapacity may also be relevant. In the
case of certain kinds of incapacity, for example alcoholism or drug abuse,
counselling and rehabilitation may be appropriate steps for an employer to
consider. (4) Particular consideration should be given to employees who
are injured at work or who are incapacitated by work -related illness. The
courts have indicated that the duty on the employer to accommodate the
incapacity of the employee is more onerous in these circumstances.
11. Guidelines in cases of dismissal arising from ill health or injury. —
Any person determining whether a dismissal arising from ill health or injury
is unfair should consider — (a) whether or not the employee is capable of
performing the work; and (b) if the employee is not capable— (i) the extent
to which the employee is able to perform the work; (ii) the extent to which
the employee’s work circumstances might be adapted to accommodate
disability, or, where this is not possible, the extent to which the employee’s
disability, or, where this is not possible, the extent to which the employee’s
duties might be adapted; and (iii) the availability of any suitable alternative
work.”
[16] No consideration was given to whether the First Respondent had complied
with the procedural and substantive obligations that arise in incapacity
matters, including whether any form of counselling, rehabilitation or
reasonable accommodation had been explored before dismissal.
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b) Failure to consider material evidence
[17] The Applicant asserts that the Arbitrator failed to apply his mind to material
evidence that was central to the dispute namely:
a) The Applicant’s voluntary admission to a rehabilitation facility;
b) The Applicant’s supervisor’s evidence confirming the applicant’s
struggle with alcoholism since 2017;
c) The Applicant’s engagement with the EWP, attendance at counselling
sessions and demonstrated insight into his condition;
d) The Applicant’s mental health issues (major depressive disorder) ,
which influenced his relapse.
[18] The Applicant argued that the Arbitrator’s failure to deal with this evidence
rendered the proceedings unfair and materially impacted the outcome.
c) Misconduct/Gross Irregularity: Misrepresentation of Evidence
[19] The Arbitrator misinterpreted the EWP report by inferring from it that the
Applicant was “in denial” and had “refused rehabilitation”, despite:
a) The EWP report stating only that the Applicant no longer used alcohol
as a coping mechanism and not that he had refused treatment ;
b) The report being authored by an individual lacking qualifications in
addiction treatment;
c) The Applicant never being afforded an opportunity to respond or
engage with the contents of the report.
[20] The EWP report did not conclude that the Applicant no was no longer an
alcoholic or was in remission.
d) Irrational and Unreasonable findings
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[21] The Arbitrator’s conclusion that the Applicant had refused rehabilitation
and therefore a dismissal sanction was fair, was not supported by the
evidence.
[22] The evidence shows that the Applicant had voluntarily undergone
rehabilitation; had acknowledged his alcoholism during internal processes
and had requested further assistance through EWP.
[23] The Applicant argued that this evidence is incompatible with a finding of
denial or non-cooperation.
Analysis
[24] The Arbitrator, while finding that “the employer in this instance should’ve
followed the incapacity route back in March 2021, instead of issuing the
Applicant with a final written warning”, nevertheless concluded that a
dismissal for unauthorised absenteeism was fair.
[25] Section 10 (3) of the Code of Good Practice: Dismissal specifically
includes alcoholism as a form of incapacity and suggests that counselling
and rehabilitation may be appropriate measures to be undertaken by a
company in assisting such employees. In fact, the requirement to assist
such employees by providing them with treatment has been widely
accepted. The distinction between incapacity and misconduct is a direct
result of the fact that it is now accepted in scientific and medical circles
that alcoholism is a disease and that it should be treated as such
1.
[26] Where an employee is suffering under incapacity because of their
alcoholism, the employer is under an obligation to counsel and assist the
employee in accessing treatment for their disease. The purpose of placing
such a duty on an employer is based on the current medical
understanding of alcoholism – that it is a diagnosable and treatable
disease. This disease results in the employee's incapacity.
1 Transnet Freight Rail v Transnet Bargaining Council and Others (C644/2009) [2011] ZALCJHB
15 (4 March 2011)
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[27] The offence of absenteeism requires fault on the part of the employee. In
this case, the First Respondent was aware of the Applicant’s alcohol
addiction.
[28] In Naik v Telkom SA (2000) 21 ILJ 1266 (CCMA) the facts of the case
were that the employee with 17 years’ service was dismissed for being
under the influence of alcohol while on duty and challenged the fairness of
the sanction of dismissal. A year before the incident leading to his
dismissal, he had himself admitted to a rehabilitation centre and benefited
from the programme, despite relapses. The incident which led to his
dismissal was that he was found in his car after he had passed out when
he should have been at an important meeting. The CCMA held that
alcoholism is a form of incapacity and that reinstatement was fair.
[29] In terms of how to deal with the employee, the distinguishing feature in
such cases of alcoholism appears to be, as with all instances of
incapacity, that the employee is not at fault for their behaviour – the
employee cannot be blamed for their disease, and its impact on their
behaviour and dismissal for absenteeism simply cannot be justified.
[30] The test to be applied in review applications is clear. This court may
intervene if and only if the applicant establishes that the decision to which
the arbitrator came was so unreasonable that no reasonable decision-
maker could come to it.
[31] In the present matter , where the Applicant relies on some reviewable
irregularities in the assessment of the evidence, the court must be
cautious to ensure that the line between an appeal and a review is not
crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA
2The Labour Appeal
Court noted that a review court is not required to consider every factor
individually; instead, it should examine how the arbitrator treated and dealt
with each factor and then determine whether a failure by the arbitrator to
address one or more factors constitutes a process-related irregularity
address one or more factors constitutes a process-related irregularity
sufficient to set aside the award. The court cautioned against adopting a
piecemeal approach since a review court must necessarily consider the
totality of the available evidence . Specifically, the questions for a review
2 [2014] 1 BLLR 20 (LAC)
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court to ask are whether the arbitrator gave the parties a full opportunity to
have their say in respect of the dispute, whether the arbitrator identified
the issue in dispute that he or she was required to arbitrate, whether the
arbitrator understood the nature of the dispute, whether he or she dealt
with substantial merits of the dispute and whether the decision is one that
another decision maker could reasonably have arrived at based on the
evidence.
[32] In short, when an arbitrator fails to have regard to the material facts , he or
she will likely arrive at an unreasonable decision. Similarly, where an
arbitrator fails to follow proper process , he or she will arrive at an
unreasonable outcome. But, as the court emphasised, this is to be
considered on a totality of the evidence and not on a fragmented,
piecemeal analysis.
[33] The A rbitrator in the present matter disregarded the Applicant’s medical
condition despite the overwhelming evidence and his diagnosis of
alcoholism and depression. The Applicant was in remission and had
relapsed. This was not in dispute.
[34] The Arbitrator’s finding that the Applicant was guilty of unauthorised
absenteeism was not reasonable, given that absenteeism requires fault on
the part of the employee, and the Applicant , in this instance, was absent
from work due to incapacity . It is trite that the legal distinction between
incapacity and misconduct lies in the presence or absence of fault.
[35] The Arbitrator’s failure to make this distinction is the basis of his
misdirection, and the consequence of this misdirection is that his award
falls outside of a band of decisions to which a reasonable decision- maker
could come on the available material. That being so, the award stands to
be reviewed and set aside.
[36] At the arbitration hearing, the Applicant submitted that he was recovering
under rehabilitation with A lcoholics Anonymous and has been sober since
November 2021. The applicant seeks to be reinstated, the primary remedy
November 2021. The applicant seeks to be reinstated, the primary remedy
to which he is entitled, and t here is no medical bar to the A pplicant’s
reinstatement.
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I therefore make the following order:
1. The First Respondent’s postponement application is dismissed.
2. Condonation for the late filing of the review application is granted.
3. The arbitration award issued by the Third R espondent is reviewed and
set aside.
4. The award is substituted by the following:
a) The Applicant’s dismissal is substantively and procedurally unfair.
b) The Applicant is reinstated into the First Respondent’s employ with effect
from the date of his dismissal.
[3] There is no order as to costs.
_______________________
Barthus AJ
Judge of the Labour Court of South Africa
Representatives:
For the Applicant: Tzvi Brivik
Instructed Malcolm Lyons & Brivik Inc.
For the Respondent: M Dyalwane
Instructed by the State Attorney