South Africa Case Law

Sandani v Commission for Conciliation, Mediation and Arbitration ("CCMA") and Others (JR1532/21)

Sandani v Commission for Conciliation, Mediation and Arbitration ("CCMA") and Others (JR1532/21) [2025] ZALCJHB 52 (3 February 2025)

Court

Labour Court Johannesburg

Case number

JR1532/21

Judge

Adams

Labour Court review of a CCMA award dismissing an incapacity challenge. The court found the commissioner’s ruling on procedural and substantive fairness was reasonable.

• Incapacity Dismissal
• Procedural Fairness
• Substantive Fairness
• Code Of Good Practice
• Disability Management
• Review Of Arbitration Award

Khan v GPSSBC and Others (JR1260/20)

Khan v GPSSBC and Others (JR1260/20) [2023] ZALCJHB 349 (28 December 2023)

Court

Labour Court Johannesburg

Case number

JR1260/20

Judge

Whitcher

The Labour Court dismissed a review of a condonation ruling, finding the applicant’s three-year delay inadequately explained and his prospects of success poor.

• Condonation
• Unfair Labour Practice
• Incapacity Dismissal
• Public Service Regulations
• Labour-law
• Incapacity-dismissal

Gugwini v National Consumer Commissioner (JS 602/19)

Gugwini v National Consumer Commissioner (JS 602/19) [2023] ZALCJHB 175; (2023) 44 ILJ 2237 (LC); [2023] 9 BLLR 915 (LC) (6 June 2023)

Court

Labour Court Johannesburg

Case number

JS 602/19

Judge

Prinsloo

The court found that the applicant was unable to perform the inherent requirements of his position as senior researcher, namely reading and writing, due to his permanent disability. The respondent established that no reasonable accommodation could enable the applicant to fulfil these core duties, and alternative positions were either unsuitable or refused by the applicant. The respondent's actions were consistent with the Employment Equity Act and Labour Relations Act, as the dismissal was based on incapacity rather than discrimination. The applicant failed to discharge the onus of proving th…

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• Automatic Unfair Dismissal
• Unfair Discrimination
• Reasonable Accommodation
• Employment Equity Act
• Incapacity Dismissal

Shezi v Transnet Bargaining Council and Others (D1286/2019)

Shezi v Transnet Bargaining Council and Others (D1286/2019) [2023] ZALCD 10 (24 May 2023)

Court

Labour Court Durban

Case number

D1286/2019

Judge

Nxusani

Labour Court refused condonation for a late referral and dismissed the review, finding the applicant’s delay explanation unsatisfactory and excessive.

• Condonation Of Late Referral
• Incapacity Dismissal
• Disciplinary Procedure
• Review Of Arbitration Award
• Condonation-of-late-referral
• Labour-review

Ndzeru v Transnet National Ports Authority and Others (C369/2020)

Ndzeru v Transnet National Ports Authority and Others (C369/2020) [2023] ZALCCT 11; [2023] 6 BLLR 565 (LC); (2023) 44 ILJ 1307 (LC) (16 March 2023)

Court

Labour Court Cape Town

Case number

C369/2020

Judge

Lagrange

The court found that the arbitrator's decision that the applicant's dismissal for incapacity was substantively and procedurally fair could not be faulted on the evidence presented. The applicant was absent for an extended period due to incarceration, with no clear indication of when he would return. He was notified of the incapacity hearing, represented by his union, and given an opportunity to make representations. The procedural fairness of the dismissal depended on the adequacy of the hearing held in absentia and whether any defects were rectified. The applicant did not actively pursue an…

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• Incapacity Dismissal
• Procedural Fairness
• Arbitration Review
• Employee Incarceration
• Right To Hearing

Atlantis Foundries (Pty) Ltd v NUMSA obo Brown and Others (C867/2017)

Atlantis Foundries (Pty) Ltd v NUMSA obo Brown and Others (C867/2017) [2020] ZALCCT 25; (2020) 41 ILJ 2813 (LC) (27 August 2020)

Court

Labour Court Cape Town

Case number

C867/2017

Judge

Lagrange

The court found that the arbitrator misconstrued the test for procedural fairness by treating the employer's scepticism about Brown's illnesses as a disciplinary issue rather than incapacity. However, despite flaws in the arbitrator's reasoning, the evidence supported the conclusion that Atlantis failed to provide Brown with a meaningful attendance improvement plan, did not adequately investigate possible underlying causes for his frequent absences, and dismissed him prematurely while he was participating in an employee assistance program. The employer did not set clear targets for improvemen…

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• Incapacity Dismissal
• Procedural Fairness
• Substantive Fairness
• Attendance Improvement Plan
• Employee Assistance Program
• Review Of Arbitration Award

Legalwise Insurance South Africa v Kleinot NO and Others (JR502/15)

Legalwise Insurance South Africa v Kleinot NO and Others (JR502/15) [2019] ZALCJHB 199; (2020) 41 ILJ 2862 (LC) (15 August 2019)

Court

Labour Court Johannesburg

Case number

JR502/15

Judge

Norton

The Labour Court found that the arbitrator failed to properly apply her mind to the evidence and misdirected herself by imposing unreasonable expectations on the employer, such as ensuring weight loss and purchasing a special chair. The evidence, including occupational therapist reports and the employer's attempts to accommodate Ms Shezi, demonstrated that she was incapable of performing her duties and that no suitable alternative positions were available. The arbitrator's finding that the employer did not discharge the onus of proof was incorrect, as the employer only needed to prove incapac…

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• Incapacity Dismissal
• Code Of Good Practice
• Reasonable Accommodation
• Onus Of Proof
• Arbitration Review
• Remedies For Unfair Dismissal

Solidarity and Another v Armaments Corporation of South Africa (Sco) Ltd and Others (JA40/17)

Solidarity and Another v Armaments Corporation of South Africa (Sco) Ltd and Others (JA40/17) [2018] ZALAC 39; [2019] 3 BLLR 248 (LAC); (2019) 40 ILJ 535 (LAC) (27 November 2018)

Court

Labour Appeal Court

Case number

JA40/17

Judges

Phatshoane, Davis, Murphy

The court held that s37 of the Defence Act and Armscor's policies make it a prerequisite for employees to maintain appropriate security clearance. Mr Joubert's dismissal was based on supervening impossibility of performance, constituting incapacity. However, the procedural requirements of s39 and s41 of the Defence Act, and relevant Armscor policies, were designed to ensure that employees are given reasons for refusal and an opportunity to make representations before termination. The termination letter was issued before it was established that incapacity was permanent, and the review process…

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• Incapacity Dismissal
• Security Clearance
• Procedural Fairness
• Defence Act Compliance
• Arbitration Review

Witbooi v Commission for Conciliation, Mediation and Arbitration and Others (JR2400/13)

Witbooi v Commission for Conciliation, Mediation and Arbitration and Others (JR2400/13) [2018] ZALCJHB 90; [2018] 7 BLLR 730 (LC); (2018) 39 ILJ 1852 (LC) (23 February 2018)

Court

Labour Court Johannesburg

Case number

JR2400/13

Judge

GN Moshoana

The court found that the applicant's representative was aware of the need to call Dr Minuer and chose not to do so, thus the commissioner was not obliged to intervene or assist further. The helping hand principle was not applicable in circumstances where the party is represented and understands the process. The commissioner correctly warned about the limited weight of documentary evidence without oral testimony, and the decision to dismiss for incapacity was reasonable given the applicant's inability to meet the job profile and failed attempts at accommodation. No reviewable irregularity occu…

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• Unfair Dismissal
• Incapacity Dismissal
• Helping Hand Principle
• Reasonableness Test
• Documentary Evidence
• Arbitration Review

General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (PR206/2016)

General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (PR206/2016) [2018] ZALCPE 10; (2018) 39 ILJ 1316 (LC) (30 January 2018)

Court

Labour Court Port Elizabeth

Case number

PR206/2016

Judge

Van Niekerk

The Labour Court found that the arbitrator committed a material misdirection by failing to recognise that persistent intermittent absence due to ill-health constitutes incapacity justifying dismissal. The arbitrator erred in treating the employer's proceedings as disciplinary rather than incapacity enquiries, ignoring binding authority and the terms of the collective agreement. The evidence demonstrated that the individual respondents exceeded the agreed sick leave limits, presented with multiple diagnoses, and were unlikely to improve their attendance. The employer followed the collective ag…

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• Incapacity Dismissal
• Sick Leave Management
• Collective Agreement Interpretation
• Procedural Fairness
• Substantive Fairness