The Labour Court in Johannesburg confirmed the decision to dismiss an employee of the North-West University (NWU), who was fired after being absent from work for over 260 days over two years.
The presiding judge, M. J. Ngobeni, rejected the request by BM to review and overturn the arbitration award issued by the Commission for Conciliation, Mediation and Arbitration (CCMA) in December 2022. The court ruled that there were no grounds to interfere with the commissioner's decision.
BM worked at NWU as a senior curriculum specialist in the Department of Qualifications and Academic Planning. It was established that she faced several serious health issues, including anxiety requiring psychiatric hospitalization, orthopedic surgery, COVID-19 infection, and pneumonia, which led to long periods of absence from work.
After returning to work in February 2022 on a reduced schedule following several months of absence, the university initiated the incapacity procedure in accordance with its Code of Conduct. Following a Stage Six hearing, her employment was terminated in January 2022 due to poor health.
BM challenged her dismissal at the CCMA, claiming it was unfair. The commissioner dismissed her claim, finding that the university had followed a fair procedure and that the dismissal was justified. She then approached the Labour Court seeking to review and set aside this arbitration award.
In considering the case, BM argued that the commissioner made serious errors by deciding the dispute without hearing oral testimony, ignoring important medical records, and resolving factual disputes that should have been addressed through witness evidence. Furthermore, she insisted that NWU did not obtain an independent medical assessment before the dismissal and did not adequately investigate alternatives to dismissal or reasonably accommodate her condition.
The university countered this assertion, stating that the arbitration proceeded by agreement as a matter of established facts, as there were no factual disputes requiring oral evidence. It argued that the only legal question before the commissioner was whether the law required the employer to obtain a medical certificate before dismissing an employee due to incapacity resulting from illness.
The university maintained that neither the legislation, its Code of Conduct, nor the Code of Good Practice imposed such an obligation. After reviewing the CCMA materials, Judge Ngobeni found that the parties clearly agreed that the arbitration would be conducted as a matter of established facts, with documentary evidence accepted as undisputed, and only legal questions considered. The judge rejected Moletsane's argument that the commissioner improperly resolved factual disputes without hearing evidence.
The court also concluded that the commissioner correctly addressed the central issue. It accepted the fact that Moletsane had been absent from work for more than 260 days over two years, and that there was no legal requirement obliging NWU to obtain a separate medical certificate before deciding to terminate her employment. Judge Ngobeni ruled that the university complied with the necessary incapacity procedures, including conducting the prescribed Stage Six hearing, and investigated the employee's condition before making a decision. The court also agreed that offering alternative work would not have solved the core problem due to Moletsane's prolonged and ongoing inability to attend work.
The court further noted that the university made 'significant' efforts to accommodate the employee before dismissal, and that no further medical consultation would have changed the outcome. Consequently, the judge concluded that the commissioner had not distorted the essence of the investigation, and that the arbitration award could have been reached by a reasonable person based on the evidence presented.
