- A former North-West University employee challenged her dismissal after long-term illness kept her away from work for long stretches.
- The Labour Court found the CCMA commissioner made a reasonable decision in upholding the dismissal.
- The court held the university properly investigated the employee's incapacity before ending her employment.
For over two years, Babele Moletsane’s work at North-West University (NWU) was repeatedly interrupted by serious illness. She struggled with anxiety, needed surgery, contracted Covid-19, and was later hospitalised with pneumonia.
These long absences led the university to decide it could not continue employing her, and she was dismissed for ill-health in January 2022.
Feeling the decision was unfair, Moletsane took her case to the Commission for Conciliation, Mediation and Arbitration (CCMA). She argued that the university had not followed a fair process and should have obtained a medical report before ending her employment.
When Commissioner Solomon Modipa found the dismissal was both procedurally and substantively fair, she went to the Labour Court in Johannesburg to try to have that decision reviewed and overturned.
However, Acting Judge MJ Ngobeni found that the commissioner had not made any irregularities and that the arbitration award was one a reasonable person could have made.
Illness caused extended absences
Moletsane worked as a senior curriculum specialist in the university’s Qualifications and Academic Planning Unit. The court heard that she was admitted to a psychiatric hospital after being diagnosed with anxiety, then later needed surgery for an orthopaedic condition.
Although she returned to work before fully recovering, she then caught Covid-19 and had to quarantine. After that, she developed pneumonia, needed another operation, and was off work until February 2022, when doctors said she should only do light duties.
Before she could return, the university had already started a Step 6 incapacity process under its Behavioural Manual and ended her employment on 24 January 2022 because of ill-health.
Review application submitted late
Moletsane got the CCMA decision on 7 December 2022 but only filed her review application in March 2023. She said the delay was because her previous attorney did not prioritise the case, despite her repeated requests for updates. Eventually, she hired new attorneys and asked her husband for financial help to continue the legal battle.
Judge Ngobeni accepted her explanation, saying he was satisfied she had given a reasonable and satisfactory reason for the delay. In the interests of justice, he granted the application.
Employee questioned fairness of arbitration
Moletsane argued that Commissioner Modipa made mistakes by deciding important issues without hearing oral evidence, not considering her medical records, and not checking if the university had looked at reasonable alternatives to dismissal.
She also said the university should have got a medical report before dismissing her, and that the commissioner ignored important evidence about her health and ability to keep working.
NWU denied these claims, arguing that both sides had agreed to proceed with a stated case because there were no factual disputes needing oral evidence. The university insisted it had investigated Moletsane’s incapacity thoroughly and that there was no legal need to get a separate medical report before dismissing her.
Court says both sides agreed on facts
After reviewing the arbitration record, Judge Ngobeni found that both sides had clearly agreed to proceed as a stated case, so only legal questions remained to be decided.
The judge said the commissioner, by agreement between the parties, correctly decided the case without calling for evidence, as allowed by law for stated cases. The court therefore dismissed Moletsane’s complaint that the commissioner should have heard oral evidence before making a decision.
Incapacity was thoroughly investigated
The Labour Court also rejected the argument that the university had not looked into Moletsane’s incapacity or considered alternatives to dismissal.
The judgment noted that Moletsane had been away from work for about 260 days over two years and accepted the university’s evidence that, in those circumstances, alternative jobs would not have solved the problem of her being unable to do her duties.
Judge Ngobeni also found there was no legal rule forcing the university to get a medical report before dismissing her, as long as it had properly looked into her incapacity.
Commissioner made a reasonable decision
Looking at the CCMA’s decision, the judge found that Commissioner Modipa looked at the right issues and made a decision that any other reasonable commissioner could have made.
Judge Ngobeni agreed with the commissioner’s conclusion that the university had made every effort to accommodate Moletsane before dismissing her, and that any reasonable employer would have done the same. Further medical consultation would not have changed the outcome.
The judge added that there was no sign of misconduct or serious mistakes by the commissioner, so the application for review could not succeed.
Order
The Labour Court dismissed the review application and made no order on costs, noting that Moletsane had limited financial means and had received free legal help.
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