KZN department ordered to reinstate teacher after ‘medical boarding’

The Education Labour Relations Council (ELRC) has ruled that the KwaZulu-Natal department of education unfairly dismissed an experienced teacher by forcing him into permanent medical retirement without his consent or proper medical assessment.

An arbitrator, JA van der Walt, declared on Monday that the dismissal of Vikimpi Samuel Sibiya was both substantively and procedurally unfair.

He ordered the department to reinstate Sibiya, who has been teaching for 10 years, retrospectively to his position at Isivunguvungu Secondary School in Ingwavuma by no later than June 15 and pay him over R410,000 in back-pay.

Sibiya was dismissed by the department on April 16 last year.

His principal had written to the department indicating that Sibiya had been medically unfit for duty. Sibiya was advised in writing that his services had been discharged due to ill health and his salary was stopped from June 1 2025.

Sibiya referred an unfair dismissal dispute for medical incapacity to the ELRC.

Sibiya’s case before the ELRC was that he had neither requested nor indicated that he had wanted to apply to be declared medically incapacitated. He said the process was forced upon him and in any event, had been flawed in several respects.

In his testimony before the ELRC, Sibiya testified he was unwell from September 2022. He returned to work in August 2023 after being declared fit to resume work by a medical practitioner.

Sibiya stated that he worked until the end of 2023 without falling ill. He also worked through 2024 without any health problems. Sibiya testified he was not ill at the time of receiving the medical boarding letter and neither had he applied to be medically boarded. He received the letter while at work performing his duties.

Sibiya stated that the school principal had not consulted him when he wrote and submitted the letter to have him medically boarded by the department.

“Furthermore, there was no medical examination conducted on him by a medical practitioner provided for by the respondent. Payment of his salary was stopped thereafter. The applicant testified that he felt harassed by the respondent in this regard,” the arbitrator said in summarising Sibiya’s testimony.

Lindiwe Magwaza, the senior human resources manager for the department, testified that the processing of Sibiya’s termination was triggered by a letter from the school principal.

She said the department relied on documents from Alexander Forbes, an independent agent used to assess temporary incapacity leave applications. Alexander Forbes indicated that Sibiya had previously suffered a stroke and faced ongoing high blood pressure risks.

The arbitrator said it was common cause that Sibiya had fallen ill and had been placed on temporary ill-health incapacity. He said when Sibiya was informed of the termination of his services, he was at work performing his duties.

The arbitrator said the department had not provided any evidence pointing to Sibiya’s permanent incapacity.

“With regard to substantive fairness, it is uncontested that the applicant had worked from August 2023 until the date of discharge without taking any sick leave.

“The (department) has not provided any evidence from a medical practitioner in the form of a medical report to place (Sibiya) on incapacity due to ill-health.”

The arbitrator said the department completely bypassed the strict legal protections outlined in Schedule 1 of the Employment of Educators Act.

The (department) did not make reference to this process being adhered to concluding that (Sibiya) must be medically boarded.

—  ELRC arbitrator JA van der Walt

The act stipulates that if an employer believes an educator is incapacitated, they must conduct a formal investigation, give the educator an opportunity to state their case, appoint a registered medical practitioner at the state’s expense to examine the employee and investigate alternatives to dismissal, such as adapting the employee’s duties or securing alternative employment.

Van der Walt said it was apparent that the requirements in the act were not complied with.

“The (department) did not make reference to this process being adhered to, concluding that (Sibiya) must be medically boarded.”

He said the department had not provided any evidence from a medical practitioner in the form of a medical report to place Sibiya on incapacity due to ill-health.

He said the department relied on a medical report submitted by Sibiya himself, which only placed the teacher on temporary incapacity for a fixed duration.

“There is no mention of a performance evaluation by the principal or the (department) to make an informed decision with regard to the permanent incapacity of (Sibiya).”