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[2026] ZALCCT 107
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Solidarity v Cape Peninsula University of Technology and Others (C196/24) [2026] ZALCCT 107 (8 July 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No. C196/24
(1)
Reportable: Yes
(2)
Of interest to other Judges: Yes/No
(3)
Revised
In the matter between:
SOLIDARITY
First Applicant
SAMAAI,
FEROSE
Second Applicant
and
CAPE PENINSULA
UNIVERSITY OF TECHNOLOGY
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
DE VLIEGER-SEYNHAEVE,
I
N.O.
Third Respondent
Heard:
13 May 2026
Delivered:
8 July 2026
Review Application -
Dismissal – Incapacity arising from ill health –
Reasonable accommodation – Reliance on historical
transfers
predating incapacity enquiry insufficient to show compliance with
obligation to accommodate employee – Employer
required to
consider accommodation and alternatives during relevant incapacity
process – Failure to do so rendering dismissal
substantively
unfair.
Dismissal –
Incapacity arising from ill health - Failure to investigate
alternatives to dismissal – Medical boarding
as reasonable
alternative – Employer refusing to facilitate or consider
employee’s application for medical boarding
once incapacity
process commenced – Commissioner finding dismissal
substantively fair – Misdirection in fact and law
– Duty
to investigate extent of incapacity, accommodation and alternatives
short of dismissal – Medical boarding constituting
an obvious
alternative that required proper consideration – Arbitration
award upholding substantive fairness reviewed and
set aside –
Award substituted with finding that dismissal was substantively
unfair and compensation of eleven months’
remuneration.
This judgment was
handed down electronically by circulation to the parties’
and/or their legal representatives by email. The
date of hand-down is
8 July 2026.
JUDGMENT
MAKHURA,
J
Introduction
[1]
The second applicant employee was dismissed
by the first respondent (respondent or CPUT)
on
grounds of incapacity arising from ill health. She subsequently
referred an unfair dismissal dispute to the Commission for
Conciliation,
Mediation and Arbitration (CCMA). Following
arbitration, the third respondent commissioner found that the
dismissal was procedurally
unfair but substantively fair and awarded
the employee compensation equivalent to one month's remuneration for
the procedural unfairness.
[2]
In this review application, brought in
terms of section 145 of the Labour Relations Act 66 of 1996 (LRA),
the applicants seek to
have the arbitration award reviewed and set
aside insofar as it upheld the substantive fairness of the dismissal.
The respondent
opposes the application.
Background facts
[3]
The employee commenced employment with the
respondent in May 1996. At the time of her dismissal, she occupied
the position of Administrator:
Human Capital. Between January 2015
and 31 December 2018, the employee was seconded and assigned to
various positions before returning
to her substantive administrator
post on 1 January 2019, which she occupied until her dismissal.
[4]
In 2018, the employee was diagnosed with
anxiety and depression. She later underwent the amputation of a
finger in August 2021 and
wrist surgery in April 2023.
[5]
At all material times, the employee
reported to Gaynore Boyle, the Team Leader in Human Capital. Boyle
reported to Ncediwe Qomoyi,
Director: Human
Capital Operations and Services,
who in
turn reported to Adeshini McIntosh, Human Resource Business Partner.
These three employees, together with Lucina Reddy, Employment
Equity
Specialist, testified on behalf of the respondent during the
arbitration proceedings. The employee testified in support
of her own
case and did not call any further witnesses.
Occupational therapist
reports
[6]
It is common cause that, following her
diagnosis of anxiety and depression, the employee was referred to
occupational therapist,
Al Marie Botes, for assessment and
support. Botes conducted four assessments and issued reports dated 13
November 2020, 6
December 2021, 5 August 2022 and 1 November 2022. In
the first report, Botes identified a significant mismatch between the
requirements
of the employee's position and her ability to meet
deadlines while maintaining the required level of accuracy. The
report attributed
these difficulties to her anxiety and depression,
noting that her symptoms adversely affected her productivity,
relationships in
the workplace, and capacity to cope with
occupational demands. It further concluded that her psychological
condition substantially
impaired her ability to meet the requirements
of most forms of employment at that time.
[7]
The report recommended various
interventions, including ongoing psychiatric treatment, a review of
her medication, regular psychological
counselling, participation in a
structured programme focusing on goal setting, time management and
coping skills, and case management
interventions. The latter included
engagement between management and the employee to identify
appropriate workplace accommodations,
monitor her progress and ensure
continued compliance with treatment. Periodic reassessments at
intervals of three to six months
were also recommended.
[8]
The employee was absent from work due to
ill health during the periods 18 January to 5 March 2021, 24 March to
30 June 2021 and
10 August 2021 to 20 September 2021. She was
assigned light duties from 10 March 2021 to 31 March 2021. She
resumed her full duties
on 1 December 2021.
[9]
In the second assessment report, dated 6
December 2021, Botes recorded that the employee had undergone
amputation of her left fifth
finger following a hospital admission in
August 2021. The report further noted that she was attending
psychiatric reviews every
six months, consulting a psychologist
regularly and participating in occupational therapy interventions.
According to the report,
her psychological state and mood had
improved during her absence from work, largely because she was no
longer exposed to workplace
pressures and deadlines. However,
concerns remained regarding her ability to meet deadlines and cope
with work-related demands.
[10]
The report concluded that the employee’s
limitations remained consistent with her diagnoses of anxiety and
depression, compounded
by the psychological effects of the traumatic
amputation and its residual consequences. While further intervention
was expected
to improve her functioning and occupational suitability,
the report cautioned that, given the chronic nature of her
psychological
condition, she would likely require ongoing reasonable
accommodation, particularly during periods of heightened symptoms. As
a
result, she remained vulnerable within the open labour market. The
recommendations contained in the December 2021 report largely
reflected those made in the previous report.
[11]
The subsequent report of 5 August 2022
recommended continued psychological and psychiatric treatment and
recorded that CPUT had
agreed to fund an online cognitive stimulation
programme and additional occupational therapy sessions. It further
provided for
weekly telephonic engagements between the occupational
therapist, the employee and her line manager to facilitate
communication,
address workplace challenges and monitor progress.
[12]
In her final report dated 1 November 2022,
Botes noted that the employee had been exposed to a range of
interventions designed to
improve her time-management skills, coping
mechanisms, communication abilities and emotional regulation. She
recorded that:
‘
With
participation in the case management and therapy process, as well as
with a change in her medication, improvement was noted
in the
[employee’s] psychological presentation, in keeping with her
self-reported scores indicating improved self-esteem,
mild/sub-clinical levels of psychological distress, as well as
improved emotional regulation.’
[13]
Notwithstanding these improvements, Botes
recommended the continuation of psychological and psychiatric
treatment, further occupational
therapy interventions and additional
communication training involving both the employee and her line
manager. She also recommended
regular meetings between them to
provide feedback, resolve workplace concerns and identify practical
solutions to any challenges
that might arise.
[14]
The evidence does not indicate that any
further occupational therapy assessments or structured interventions
were undertaken after
the November 2022 report.
Incapacity enquiry
[15]
On 6 June 2023, the respondent issued a
notice of incapacity enquiry, calling upon the employee to attend an
enquiry concerning
the following:
‘
Since
on or about the 17
th
April 2018 when your case was formally reported to the Wellness
Office to date, the institution is of the opinion that all support
was facilitated through attempts to try to reintegrate your
return-to-work plan in your position, over a 6 month period at a time
and which resulted in no success
due to
not meeting the performance standards
.
This was also followed by
a final assessment from the OT, namely the Impairment Review to
comment on change and improvement in your
ability to perform the
duties in your nominated occupation which indicated little change in
terms of your psychological assessment
and that you remained unable
to secure a full job match to the requirements of your nominated
occupation which is that of an Administrator:
Human Capital.
Thus,
you are hereby notified that a formal enquiry will be held to afford
you to state your case before a decision is made regarding
your
future employment with CPUT
.’
(Emphasis added)
[16]
The notice of enquiry stated inter
alia
that the respondent “
will present
evidence at the hearing to substantiate the allegations against”
the employee, that she had the right to cross-examine the
respondent’s witnesses and to present evidence, that if “
found
guilty of any of the charges”
,
the chairperson shall hear the mitigating and aggravating submissions
before making a “
recommendation
with an appropriate sanction”
.
[17]
The enquiry was initially scheduled for 6
June 2023 but did not proceed, primarily because the employee had not
been furnished with
the documentary bundle.
[18]
On 8 June 2023, the employee addressed an
email to the respondent, attaching a medical boarding application
form. The email reads
as follows:
‘
Please
find attached claim form. Kindly please complete page 4 & 5 of
the form and return to me.
Please note that this is
the third time that I have requested for this form to be completed.
Please note that this
claim is a Sanlam Disability process which is separate/different from
the CPUT Incapacity hearing. My wrist
has not healed yet.
Please
email me reasons should you not want to complete this Claim form.’
[19]
On the same day, Qomoyi responded and
informed the employee that the matter was with Employee Relations
(ER) and that she should:
‘
stop
communicating with Gaynore and myself and stop copying the DVC’s
office on your sudden decision to engage. We had engaged
you on many
occasions since 2021 on this matter and you never wanted to engage.
Please accept that your matter has now been escalated
to ER and
please cooperate to engage at that level.’
[20]
Qomoyi further informed the employee not to
expect any response from her office. In reply, the employee disputed
the suggestion
that she had failed to engage with management, stating
that she had been interacting with the Human Capital division since
2019.
[21]
The enquiry was rescheduled for 23 June
2023. Although the employee was on approved sick leave until 26 June
2023, the incapacity
enquiry proceeded in her absence.
[22]
On 30 June 2023, the chairperson of the
enquiry issued her findings and recommendations. The chairperson
found that the employee’s
duties centred on deadlines and that
she had repeatedly failed to meet them, particularly in
payroll-related functions, due to
her frequent absenteeism on sick
leave during critical periods.
[23]
The chairperson concluded that the employee
was unable to perform her duties effectively and that her prolonged
absenteeism had
materially compromised her work performance. She also
found that the employee’s frequent absence adversely affected
her ability
to perform her functions upon returning to work, to the
extent that she allegedly struggled to recall aspects of her job. In
her
view, the evidence demonstrated that the employee was incapable
of performing the essential requirements of her position.
[24]
In addition, the chairperson relied on
evidence that the employee had allegedly been advised to pursue
temporary medical boarding
but had failed to do so. The chairperson
considered this, together with the alleged support and interventions
already provided
by the respondent, as indicative that there was
little more the respondent could reasonably do to accommodate the
employee. She
concluded that:
‘
I
find that the employer has done what it could to accommodate the
employee by sending her for counselling, an occupational therapist,
assisting and advising her of the temporal boarding process, adapting
her duties and giving her less work when she returned to
work. The
employer phased her into her work by starting with lighter duties
which they did, however, despite these attempts the
employee
continued to stay away from work and complaining that she could not
perform the lighter duties. This shows that the employee,
due to her
incapacity, cannot work. The employer has made the necessary attempts
to accommodate her, however, the employee has
not been forthcoming in
that regard…
I have
considered the employer’s aggravating circumstances and
recommend the employee’s dismissal…’
[25]
The employee was summarily dismissed on 5
July 2023. She referred an unfair dismissal dispute to the CCMA.
Post-dismissal medical
reports
[26]
On 21 July 2023, shortly after the
employee’s dismissal, Dr Ashraf Jedaar, a specialist
psychiatrist, furnished a report confirming
that, notwithstanding
various therapeutic interventions and adjustments to her medication,
the employee remained significantly
impaired. Dr Jedaar supported her
application for medical boarding.
[27]
Thereafter, on 15 August 2023, Dr W.J. van
Zyl, an orthopaedic surgeon, issued a letter motivating the
employee’s medical
boarding application. Dr van Zyl recorded
that he had treated the employee following the accident that resulted
in the amputation
of her finger and confirmed that her injuries had
not fully healed. Given the functional limitations arising from the
finger amputation
and chronic wrist pain, he expressed the view that
she was unable to perform the duties associated with her
administrative position
and recommended medical boarding until such
time as she had sufficiently recovered to return to work.
The arbitration
proceedings and award
[28]
At the CCMA, the parties concluded a
pre-arbitration minute in which they recorded several common cause
facts. These included that
the employee had suffered from anxiety and
depression since 2018, that her left fifth finger was amputated in
August 2021, and
that between 2015 and 2018 she had been assigned to
various positions before returning to her substantive position as
Administrator:
Human Capital in January 2019, where she remained
until her dismissal.
[29]
The issues identified as being in dispute
included whether the respondent had followed a fair procedure before
dismissing the employee,
whether it had implemented the occupational
therapist’s recommendations, whether reasonable accommodation
had been provided,
and whether dismissal was an appropriate and fair
outcome in the circumstances.
[30]
The respondent’s case was that it had
reasonably accommodated the employee over an extended period and that
no suitable alternative
position was available. It further maintained
that it had declined to assist with the employee’s medical
boarding application
because she had previously been afforded the
opportunity to pursue that option but had elected not to do so.
[31]
The commissioner first considered the
procedural fairness of the dismissal, particularly the decision to
proceed with the incapacity
enquiry in the employee’s absence.
Having examined the medical certificates and the respondent’s
responses to the employee’s
sick leave applications, the
commissioner found that the employee was on approved sick leave until
26 June 2023 when the enquiry
proceeded. In those circumstances, the
commissioner concluded that conducting the hearing in her absence was
unfair and that the
dismissal was therefore procedurally unfair.
[32]
Turning to substantive fairness, the
commissioner found that the employee was “
seemingly”
reluctant to accept any assistance and that she only agreed to
participate in the occupational therapist’s assessment process
in 2020. The commissioner accepted the respondent’s explanation
that the employee’s repeated absences hampered the
implementation of the occupational therapist’s recommendations.
She considered the online cognitive programme, occupational
therapy
sessions and weekly follow-up engagements, and concluded that:
‘
From
the reports and assessments, it became evident that the problems
experienced were not going away. The applicant kept on making
errors
and booked off on several occasions again … This suggests that
the interventions have not worked.’
[33]
Although no final medical assessment had
been obtained after the employee consented to the occupational
therapist accessing her
medical records, the commissioner took into
account the post-dismissal reports of Dr van Zyl and Dr Jedaar.
Having considered those
reports, the commissioner concluded that it
was “
correct”
for the respondent to accept that the employee “
was
not able to perform her work any longer”
.
She further found that the employee would only be able to perform a
job with no deadlines or pressure. Given the nature of her
existing
role, the commissioner accepted that her medical condition materially
impaired her ability to meet the demands of the
position.
[34]
In considering the issue of reasonable
accommodation, the commissioner attached weight to the employee’s
prolonged absenteeism
and the fact that her responsibilities had
frequently to be assumed by colleagues. The commissioner observed
that the arrangement
imposed both operational and financial burdens
on the respondent and could not be sustained indefinitely. She
further rejected
the employee’s contention that she had not
been reasonably accommodated because of a strained relationship with
her line
manager and the refusal to transfer her to another position.
[35]
As to the availability of alternative
employment, the commissioner found that no suitable alternative
position existed. She accepted
the evidence that other available
positions required a higher level of skill and similarly involved
deadlines and performance pressures.
The commissioner also considered
it significant that the employee had previously worked in several
departments where concerns relating
to performance and absenteeism
had arisen.
[36]
The commissioner then considered the issue
relating to the application for temporary medical boarding.
She was critical of the employee’s alleged
failure to pursue that option when it was allegedly raised with her
in 2021 and
found it regrettable that the employee only showed
interest in the process after she had been notified of the incapacity
enquiry.
Furthermore, the commissioner
found -
‘
it
is unclear if this process would have assisted much in the long run.
Even if she was temporarily boarded, the problems would
most likely
persist upon her return, as Dr Jedaar has confirmed. When the
applicant was asked whether she could say whether she
would be
healthy after such a temporary boarding, she stated that she could
not look into the future. It was further testified
by the respondent
that temporary boarding was a process that needed to be instituted by
the employee herself as temporary boarding
resulted in a lower
salary. The applicant was informed of this process in 2021 and it was
her choice to pursue this option or not.’
[37]
The
commissioner sought to distinguish this case from
Wilcocks
v Khawula NO & others
[1]
(Wilcocks)
,
where this Court recognised medical boarding as an obvious
alternative to dismissal that ought to be properly explored. She
reasoned
that the present case concerned temporary boarding rather
than ill health retirement and concluded that there was no evidence
suggesting
that temporary boarding would address the employee’s
long-standing mental health challenges. On that basis, she found that
dismissal was the only viable option and concluded that the
employee’s prolonged ill health and the failure of the various
interventions rendered the dismissal substantively fair.
The grounds for review
[38]
The applicants challenge the award on the
grounds of alleged unreasonableness. They contend broadly that the
commissioner misconstrued
the evidence, committed misconduct and
gross irregularities, failed to consider relevant facts, ignored and
misunderstood the evidence
and the legal principles, and issued an
unreasonable award.
[39]
The applicants’ primary case concerns
the commissioner’s finding that dismissal was the only viable
option available
to the respondent and that medical boarding was
unlikely to have provided a meaningful or lasting solution. The
applicants argue
that the commissioner either ignored or attached
insufficient weight to the evidence relating to the employee’s
attempt to
pursue medical boarding and failed to appreciate that it
constituted a reasonable alternative to dismissal which ought
properly
to have been explored.
[40]
The
applicants submit further that the respondent’s refusal to
facilitate or meaningfully consider the employee’s application
for medical boarding resulted in an incomplete assessment of whether
alternatives short of dismissal had been investigated, as
required by
items 10 and 11 of the Code of Good Practice
[2]
(the Code), which govern dismissals for incapacity arising from ill
health. More specifically, the applicants argue that, in cases
involving dismissal for incapacity caused by ill health, the
procedural and substantive enquiries are closely intertwined.
Accordingly,
once the commissioner found that the incapacity process
was procedurally unfair, she ought also to have concluded that the
dismissal
was substantively unfair because the same deficiencies
affected the fairness of the ultimate decision to dismiss.
Analysis
[41]
At the time of dismissal and arbitration,
dismissal for incapacity on grounds of ill health or injury was
regulated by items 10
and 11 of the Code. Item 10 provides that:
‘
(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 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 the 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 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 the
dismissal
…’ (Emphasis added)
[42]
The above provisions underscore that the
fairness of a dismissal for incapacity arising from ill health
depends not only on the
existence of a medical condition but also on
the extent of the incapacity, the feasibility of accommodation, and
the consideration
of alternatives to dismissal. The process further
requires that the employee be afforded a meaningful opportunity to
participate
in the investigation and respond to any adverse findings
before a decision affecting continued employment is taken.
[43]
Item 11
sets
out the guidelines in cases of dismissal arising from ill health or
injury as follows:
‘
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;
(b)
if
the employee is not capable -
(i) the extent
to which the employee is able to perform the work;
(ii) the
extent to which the employee's work circumstances might be adapted to
accommodate disability, or, where this
is not possible, the extent to
which the employee’s duties might be adapted; and
(iii) the
availability of any suitable alternative work.’
[44]
A
proper enquiry into the fairness of an incapacity dismissal by the
commissioner therefore requires an assessment of the employee’s
actual ability to perform the work, the degree of any incapacity, the
possibility of reasonable accommodation, and the availability
of
alternatives to dismissal. The onus is on the employer to show that
the dismissal was fair.
[3]
[45]
Before addressing the principal review
grounds, two prominent issues require consideration. The first
concerns the true reason for
the employee’s dismissal and the
nature of the enquiry conducted by CPUT. The second relates to the
medical condition that
allegedly gave rise to the incapacity enquiry.
Although these matters were not pursued as independent review
grounds, they are
material to a proper understanding of the dispute
and the commissioner’s determination thereof.
Reason for dismissal
and nature of the enquiry
[46]
Qomoyi testified in chief that the employee
was “
not reliable”
,
was “
lazy”
and did “
not want to work”
and whenever she worked, “
she
would not perform to the T”
and
that she did “
not pay any
attention to detail”
. She
testified that the employee “
has
been manipulating the system since she was appointed at CPUT by
sickness, by laziness, by performance and all that”
.
[47]
According to Qomoyi, the employee’s
main difficulty was not her medical condition as such, but her
inability to organise and
manage her workload effectively. She
testified that the employee frequently allowed work to accumulate
until deadlines became imminent,
resulting in delays and missed
deadlines. While acknowledging the employee’s health
challenges, Qomoyi maintained that poor
planning and inadequate work
management lay at the heart of the employee's difficulties.
[48]
Boyle’s evidence echoed that of
Qomoyi. She testified that the meetings and interventions implemented
pursuant to the occupational
therapist’s recommendations were
largely directed at assisting the employee in improving her
performance. Boyle similarly
stated that the employee tended to
postpone work until it accumulated and that she had repeatedly
advised the employee on methods
of planning and managing her
responsibilities more effectively.
[49]
McIntosh testified that her initial
involvement in the matter related primarily to the management of the
employee’s sick leave,
until the matter later escalated “
beyond
that to performance issues”
. She
further testified that:
‘
APPLICANT’S
REPRESENTATIVE
: So, how did the
employer conclude that she is medically incapacitated due [to] ill
health without comprehensive reports either
from themselves or from
the applicant’s doctor?
MS.
ADESHINI MCINTOSH
: I don’t think
that is something we concluded, we made – we were making the
case based on – I don’t think
any of us are competent to
make assumptions, medical assumptions,
we
were making a case based on the – our experiences and our
difficulties and our challenges that we were experiencing
.’
(Emphasis added)
[50]
The evidence of the respondent’s
witnesses reveals a significant disconnect between the stated reason
for the dismissal and
the evidence advanced in support of it. Much of
the evidence focused on allegations of poor performance,
unreliability, laziness,
lack of diligence and an inability to manage
workloads effectively, rather than on the extent of any medically
established incapacity.
Furthermore, save for the post-dismissal
medical reports obtained by the employee with a view to supporting
her medical boarding
application, no comprehensive medical evidence
was presented to the chairperson or the commissioner establishing the
degree of
incapacity or demonstrating that the employee was
permanently incapable of performing her duties. This raises a
legitimate question
as to whether the dismissal was in truth based on
incapacity arising from ill health or on concerns more closely
associated with
performance and conduct.
[51]
Furthermore, when regard is had to the
notice of the incapacity enquiry, the proceedings conducted on 23
June 2023, the outcome
report and the evidence presented by the
respondent, it is reasonable to conclude that the process assumed the
character of a disciplinary
hearing rather than a genuine incapacity
enquiry.
Which ill health gave
rise to the incapacity enquiry?
[52]
It is common cause that the employee was
diagnosed with anxiety and depression in 2018, that she underwent the
amputation of her
left fifth finger in August 2021, and that she
subsequently underwent wrist surgery in 2023. Following the finger
amputation, her
workload was temporarily reduced until her return to
full duties in November 2021. The question is which of these
conditions formed
the backdrop against which the incapacity process
was initiated.
[53]
During her evidence, Qomoyi was asked to
identify the specific medical condition that formed the basis of the
incapacity enquiry
and the employee’s eventual dismissal.
Rather than providing a direct answer, she referred to the outcome of
the enquiry
and described the matter as one involving “
incapacity
for poor performance”
. Her
response prompted further questioning because it failed to clarify
whether the enquiry was founded on the employee’s
psychological
condition, her physical injuries, or a combination of both.
[54]
Even after the question was reformulated,
Qomoyi remained unable to identify a particular medical condition as
the basis for the
incapacity enquiry. Instead, she referred generally
to the employee’s various health challenges, including mental
health
issues and physical injuries, while indicating that she
preferred to rely on what had been recorded during the incapacity
enquiry
rather than provide a definitive answer of her own. The
difficulty, of course, is that even the chairperson of the incapacity
enquiry
did not properly address this issue in her outcome report.
[55]
When it was put to her that much of her
“
evidence related to performance
issues and not medical conditions”
,
Qomoyi responded that the employee:
‘
will
be sick, she will not perform, she will be lazy all those things
that’s, that’s what she has been to us. There
…
would be issues of illness, there will be issues of lack of
performance, there will be issues of laziness where you see
that this
person does not want to even know what is happening. She’s
lazy.’
[56]
Boyle’s testimony added further
uncertainty. In addition to anxiety and depression, the finger
amputation and the wrist surgery,
she referred to several other
ailments allegedly affecting the employee, including eczema, asthma,
headaches and irritable bowel
syndrome. Boyle also expressed concerns
regarding the employee’s memory. McIntosh, on the other hand,
identified anxiety
and depression as the primary condition underlying
the incapacity enquiry, while noting that the employee also suffered
from asthma.
[57]
The evidence as a whole does not establish
with any clarity whether the incapacity enquiry was based on the
employee’s anxiety
and depression, her finger amputation and
wrist injury, some other medical condition, or a combination of these
factors. The inability
of the respondent’s witnesses to
identify the condition that allegedly rendered the employee
incapacitated underscores the
uncertainty surrounding the foundation
of the enquiry itself.
[58]
Notwithstanding these evidentiary
difficulties, the commissioner ultimately concluded that the
employee’s incapacity stemmed
primarily from her anxiety and
depression and that she was unable to perform her work as a result.
That conclusion relied substantially
on medical reports obtained
after the employee’s dismissal, despite the absence of evidence
demonstrating that the performance
shortcomings relied upon were
causally linked to any particular medical condition.
Accommodation and
alternatives
[59]
Turning to the primary ground of review, it
is trite that upon determination that the employee is permanently
incapacitated and
that his or her working circumstances or duties
cannot be adapted, the employer is required to investigate all
reasonable alternatives
to dismissal.
The
applicants contend that the respondent failed to discharge this
obligation and did not meaningfully explore alternatives before
dismissing the employee.
[60]
The commissioner accepted that the employee
was permanently incapacitated. The respondent’s case was that
it had already accommodated
the employee over an extended period. To
substantiate this, Qomoyi relied on the employee’s secondments
to various positions
between 2015 and 2018. McIntosh similarly
testified that these secondments were intended to accommodate the
employee and reflected
the respondent’s efforts to find a
suitable role for her. According to McIntosh, by 2023, the respondent
had exhausted the
option of moving the employee between positions
because previous transfers had not resolved the underlying
difficulties.
[61]
Reddy’s evidence was that alternative
positions within the Human Capital department would not have been
suitable because they
generally involved greater levels of
responsibility and complexity than the employee’s existing
role. She further testified
that, although she was aware that the
employee had previously worked in other departments, she had no
direct knowledge of those
arrangements or their outcomes.
[62]
The commissioner accepted that the
respondent had reasonably accommodated the employee. However, the
evidence indicates that the
employee’s transfers between 2015
and 2018 were not implemented as measures to accommodate a medically
established incapacity.
Rather, they were motivated by concerns
relating to her alleged poor performance and workplace difficulties.
Those transfers, which
happened before the anxiety and depression,
the finger amputation and wrist surgery, therefore, cannot be
characterised as accommodation
measures undertaken in the context of
an incapacity enquiry.
[63]
Furthermore, even if those secondments
could be regarded as accommodation measures, the evidence
demonstrates that no meaningful
efforts were made to accommodate the
employee or identify alternatives to dismissal during the period from
January 2019, when she
returned to her substantive position, until
the initiation of the incapacity process in 2023 and the subsequent
dismissal. The
respondent’s reliance on events that occurred
several years earlier does not establish compliance with its
obligations during
the relevant period.
[64]
The employee was placed on light duties in
March 2021 and again following the amputation of her finger in August
2021. By November
2021, however, she had resumed her full duties. The
incapacity enquiry was nevertheless only initiated in June 2023, some
20 months
after she had returned to her normal duties. This also
occurred after the occupational therapist’s assessment report
of November
2022 had noted an improvement in her psychological
condition. The respondent did not implement the recommendation
contained in
the November 2022 report. Instead, it elected to proceed
with the incapacity process. Against this backdrop, any suggestion
that
the employee was reasonably accommodated is untenable.
[65]
A significant aspect of the employee’s
case concerned her attempt to pursue medical boarding. The applicants
contend that
the respondent was required to consider this as an
alternative to dismissal. When it was put to Qomoyi that the
respondent had
effectively denied the employee access to a benefit
for which the institution was specifically insured, she maintained
that the
option had previously been offered to the employee and that
management was not prepared to revisit the issue once the matter had
been referred to Employee Relations to commence the incapacity
process. She testified under cross-examination that:
‘
it
is at the time when we had referred the matter to ER … did you
think that [it] was correct for me to open that after we
have
referred the matter to ER. I was pointing her to the right direction
by saying we have referred the matter to ER, we have
moved from that
point. We had offered you this accommodation we had offered you this
… benefit of the institution …
to apply for ill health
and be boarded and we see how that process goes and you rejected it.
So now we have referred the matter
… for incapacity.’
[66]
The cross-examination continued:
‘
APPLICANT’S
REPRESENTATIVE
: You are basically
denying the opportunity to which CPT specifically insured which would
have been a reasonable alternative to
dismissal during an incapacity
process. Even exploring that would have been a reasonable
alternative. But you decided you are going
to put a stop to it?
MS.
QOMOYI
: Yes.’
[67]
Qomoyi regarded the employee’s
attempt to apply for medical boarding after receiving notice of the
incapacity enquiry as another
example of what she considered
manipulative conduct and therefore refused to support the application
at that stage. She said:
‘
We
offer her the … boarding … process and she declines it,
she does not want to engage, we now refer the matter to
ER, she now
comes before ER … and wants to know … fill in forms.
I
must now at her terms sign the forms and I am saying no I have
referred your matter to ER
I will be
advised by ER what to do. Then that was my stand and I am standing by
that ... That is where the manipulation comes from
to me.’
(Emphasis added)
[68]
Boyle’s evidence was broadly
consistent with that of Qomoyi. She testified that, after identifying
concerns regarding the
employee’s persistent absenteeism, she
referred the matter to the wellness office and implemented certain
interventions,
including a temporary reduction in workload. However,
neither her evidence nor that of the other witnesses demonstrated
that the
respondent seriously considered medical boarding or any
other alternative to dismissal once the incapacity process had been
initiated.
[69]
McIntosh initially stated that she was
unaware of the employee’s attempt to apply for medical
boarding. However, during cross-examination,
she acknowledged that
she had subsequently become aware of the request, although by then
the matter had been referred to Employee
Relations. She explained
that management acted on the advice of Employee Relations because the
matter had escalated into a formal
incapacity process. McIntosh did
not dispute that medical boarding constituted a reasonable
alternative to dismissal.
[70]
In
Wilcocks
,
this Court
considered the role of medical
boarding as an alternative to dismissal in incapacity cases. There,
the employee sought a postponement
of the incapacity enquiry to
obtain further medical evidence in support of a medical boarding
application. The employer declined
the request, proceeded with the
enquiry, and dismissed the employee. On review, the Court held that
where medical boarding is raised
as an alternative to dismissal, the
employer is obliged to investigate and consider that option fully
before terminating employment.
The Court
held that:
‘
...
Where there is the prospect of medical boarding (put differently, a
retirement in terms of the rules of a benefit fund established
precisely to cater for medical incapacity), this is an obvious
alternative to dismissal that ought to be fully explored. While
each
case must be dealt with on its own merits, in the present instance,
the consequence of Mbambo’s failure to explore that
option and
the arbitrator’s endorsement of the approach that she adopted
has been to deny the applicant the prospects of
determining his
eligibility for a benefit for which the third respondent is
specifically insured. The decision to dismiss the applicant
had the
consequence that he was no longer an employee of the third respondent
and therefore denied consideration for his eligibility
for any
benefit that may have accrued to him in terms of the rules of the
scheme.
The medical boarding
procedure represents an obvious potential alternative to a dismissal,
one that is required to be fully investigated
before any decision to
dismiss is taken. The pre-arbitration minute records that the rules
of the Natal Joint Municipal Pensions
Fund make provision for
retirement on the grounds of ill-health, an obvious alternative to a
dismissal. Why that option was not
explored is inexplicable. To the
extent that Mbambo and the arbitrator considered that the third
respondent’s procedure conferred
a discretion either to dismiss
or to invoke the ill-heath retirement option, that is not what the
procedure provides, nor is that
interpretation consistent with what
is required by the Code of Good Practice which, I wish to emphasise,
considers dismissal a
measure of last resort. What the third
respondent did was to dismiss the applicant, in breach of its own
procedure, and thereby
deny him the potential benefit, available only
to employees, that might otherwise have agreed in terms of the rules
of the pension
fund. Put another way, the applicant was at the
receiving end of a double whammy.
It
follows that by finding that the third respondent’s policy
conferred a discretion on the third respondent to deny the applicant
any consideration for his eligibility for benefits consequent on his
incapacity, the arbitrator misdirected himself in relation
to the
evidence before him. 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.’
[4]
[71]
The principles articulated in
Wilcocks
are directly applicable to the present matter. Once the employee
indicated her intention to pursue medical boarding, the respondent
was required to consider and investigate that option as part of its
obligation to explore alternatives short of dismissal. Whether
the
application was related to her psychological condition, her finger
amputation, her wrist injury, or a combination thereof,
or was likely
to assist in the long term did not diminish the obligation to engage
with the process meaningfully. Similarly, whether
the option was
previously raised and the employee did not engage at that time did
not diminish the respondent’s obligation
to engage with this
process when the employee raised it, unless there was a valid basis
to do so.
[72]
Instead, the evidence demonstrates that the
respondent refused to facilitate or consider the employee’s
application because
it believed she had previously declined that
option, because the matter had already been referred to Employee
Relations, and because
management regarded the application as part of
a pattern of manipulative conduct. Those considerations do not
constitute a valid
basis for refusing to investigate a potential
alternative to dismissal. The commissioner’s acceptance of that
approach, and
her speculation that medical boarding was unlikely to
prove beneficial, amounted to a misdirection both in fact and in law.
[73]
In the circumstances, the respondent failed
to discharge its obligation to investigate and consider reasonable
alternatives to dismissal.
The commissioner further misconstrued the
applicable legal principles and incorrectly distinguished
Wilcocks
from the present case. These errors materially affected the outcome
of the arbitration and, on this basis alone, render the award
untenable and unsustainable, and liable to be reviewed and set aside.
Did the procedural
unfairness render the dismissal substantively unfair?
[74]
The applicants contend that, having found
the dismissal procedurally unfair, the commissioner ought also to
have concluded that
it was substantively unfair. They argue that, in
dismissals for incapacity arising from ill health, the procedural and
substantive
enquiries are so intricately connected that a failure to
comply with the procedural requirements prescribed by the Code
necessarily
impacts the substantive fairness of the dismissal.
[75]
In
Independent
Municipal and Allied Trade Union obo Strydom v Witzenburg
Municipality & others
[5]
(Strydom)
,
the Labour Appeal Court held that compliance with items 10 and 11 of
the Code is fundamental to both procedural and substantive
fairness.
The Court emphasised that an employer may dismiss an employee for
permanent incapacity only after properly investigating
the extent of
the incapacity and considering all reasonable alternatives short of
dismissal.
[6]
[76]
Similarly, in
Wilcocks
,
this Court held that:
‘
In
the case of disputes concerning dismissal for incapacity, the line
between substantive and procedural fairness tends to become
blurred,
if only because most of the substantive obligations imposed by the
Code are discharged in the context of the necessary
inquiry into the
existence of any incapacity and its impact on continued
employment.’
[7]
[77]
The
respondent relied on the LAC judgment in
Universal
Product Network v Mbatsana
[8]
(Mbatsana)
to contend that a finding of procedural unfairness does not
automatically morph into substantive unfairness. The two enquiries,
argued the respondent, remain conceptually distinct, and a procedural
defect does not invariably undermine the substantive fairness
of
dismissal.
[78]
In my view, whilst I accept the
respondent’s legal argument that procedural defects do not
automatically lead to substantive
unfairness,
Mbatsana
is distinguishable on the facts in that it concerned a dismissal for
misconduct. In any event, the LAC recognised that, depending
on the
nature of the dispute and the particular facts, procedural defects
may in certain circumstances have substantive consequences.
Ultimately, whether procedural unfairness undermined the substantive
fairness is a question of fact that must be determined with
reference
to the particular circumstances of each case.
[79]
In the present case, the commissioner’s
finding of procedural unfairness was narrowly based on the fact that
the incapacity
enquiry proceeded in the employee’s absence
while she was on approved sick leave. Beyond that finding, the
applicants did
not establish why this procedural defect, standing
alone, necessarily rendered the dismissal substantively unfair.
Although the
line between procedural and substantive fairness is
often blurred in incapacity dismissals, I am not persuaded that the
particular
procedural irregularity identified by the commissioner
was, by itself, sufficient to undermine the substantive fairness of
the
dismissal. This ground of review, therefore, cannot succeed.
Conclusion
Summary of the
findings
[80]
To summarise,
the
commissioner’s conclusion that the employee’s dismissal
was substantively fair cannot be sustained on the evidence
presented.
In reaching that conclusion, the commissioner failed properly to
apply the principles embodied in items 10 and 11 of
the Code and
thereby committed a material error of law.
[81]
The evidence establishes that the employee
occupied her substantive position continuously from January 2019
until her dismissal
in July 2023. The various secondments that
occurred between 2015 and 2018 cannot properly be regarded as
alternative positions
explored during the incapacity process, nor can
they be relied upon as evidence that alternatives to dismissal were
considered
at the relevant time. Those transfers occurred long before
the incapacity enquiry and were implemented for reasons unrelated to
any contemporaneous investigation of incapacity.
[82]
The evidence further indicates that the
employee was transferred between departments because of concerns
relating to her alleged
poor performance, purported laziness, or
strained working relationships with managers. These transfers were
therefore not directed
at accommodating a medically established
incapacity, nor were they undertaken as part of a process aimed at
avoiding dismissal
on incapacity grounds. Further, the employees’
duties or work circumstances were only temporarily adjusted for about
three
weeks in March 2021 and from August to October 2021. Her duties
had not been adapted since November 2021.
[83]
Of particular significance is the
respondent’s refusal to assist the employee with her
application for medical boarding once
she elected to pursue that
option. Medical boarding constituted a viable and reasonable
alternative to dismissal and ought properly
to have been explored.
The respondent’s refusal to engage with that process deprived
the employee of a potential benefit
and undermined its contention
that all reasonable alternatives to dismissal had been investigated.
[84]
In
these circumstances, the commissioner’s finding that the
dismissal was substantively fair was not one that a reasonable
decision-maker could reach on the material before her.
[9]
The award accordingly falls to be reviewed and set aside insofar as
it upheld the substantive fairness of the dismissal.
Remedy
[85]
The applicants urged the Court to
substitute the award with a finding that the dismissal was
substantively unfair and to grant either
reinstatement or
compensation. The respondent, on the other hand, submitted that the
matter should be remitted to the CCMA for
a determination of the
appropriate remedy.
[86]
The full record of the arbitration
proceedings is before this Court.
I am
satisfied that this Court is in as good a position as a commissioner
to finally determine the matter, and that it is in the
interest of
justice to do so. On the evidence presented before the commissioner,
and for the reasons articulated above, the employee’s
dismissal
was substantively unfair.
[87]
Having considered the nature of the
dispute, the circumstances surrounding the dismissal, both parties’
acknowledgement of
a strained relationship and the period during
which the employee has remained unemployed, compensation rather than
reinstatement
constitutes the appropriate remedy. The commissioner
has already awarded compensation equivalent to one month’s
remuneration
for procedural unfairness. In my view, a further award
equivalent to 11 months’ remuneration is just and equitable,
resulting
in total compensation of 12 months’ remuneration.
Calculated at the employee’s monthly salary of R45 268.00 at
the
time of dismissal, the 11 months' additional compensation amounts
to R497 948.00.
[88]
Neither party persisted with a claim for
costs. Having regard to the nature of the dispute, the fact that the
applicants were represented
by a trade union official, and the
requirements of law and fairness, there is no basis for a costs
order. Accordingly, each party
should bear its own costs.
[89]
In the premises, the following order is
made:
Order
1.
Save for the commissioner’s finding
that the dismissal was procedurally unfair and the award of
compensation contained in
paragraph 42 of the arbitration award, the
arbitration award issued by the third respondent under case number
WECT11544-23 on 5
April 2024 is reviewed and set aside.
2.
The award is substituted with the
following:
‘
i.
The dismissal of the applicant, Ferose Samaai, by the respondent,
Cape Peninsula University of Technology, was substantively
unfair.
ii. The respondent
is ordered to pay the applicant compensation in the amount of
R497 948.00, being the equivalent of
eleven (11) months'
remuneration calculated at the rate applicable at the time of
dismissal.
iii. Payment of the
amount must be made within 15 court days of the date of this
judgment.’
3.
There is no order as to costs.
M.
Makhura
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicants:
Mr I. Stockenstrom of Solidarity
For the First
Respondent: Ms H. Davis
c/o Deneys
[1]
(D2158/16)
[2022] ZALCD 4 (1 March 2022).
[2]
Schedule
8 of the
Code
of Good Practice: Dismissal
,
now repealed by GG No 53294 dated 22 August 2025, wef 4 September
2025. In terms of the new Code, incapacity is dealt with under
item
21. There is no material difference between the old and the new
Code.
[3]
See:
General
Motors (Pty) Ltd v National Union of Metalworkers of SA obo Ruiters
[2015] 5 BLLR 464
(LAC); (2015) 36 ILJ 1493 (LAC) at para 36.
[4]
Wilcocks
at paras 11 – 13.
[5]
[2012]
7 BLLR 660
(LAC);
(2012)
33 ILJ 1081 (LAC).
[6]
Ibid
at para 7 - 9; see also
Parexel
International (Pty) Ltd v Chakane N.O. and others
[2019]
ZALAC 50
; (2019) 40 ILJ 2334 (LAC) at para 15.
[7]
Wilcocks
at para 9.
[8]
(JA31/25)
[2026] ZALAC 14
(31 March 2026) at paras 19 – 25.
[9]
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[2007]
ZACC 22
; (2007) 28 ILJ 2405 (CC).