No short cuts – SA Labour Court reinforces duty to explore medical boarding before dismissal

The Code of Good Practice: Dismissal (Code) requires an employer to explore reasonable accommodation and ‘all possible alternatives short of dismissal’ before dismissing an employee for incapacity due to ill health or injury.

In the matter of Solidarity and Another v Cape Peninsula University of Technology and Others [2026] ZALCCT 107, a decision delivered on 8 July 2026, the Labour Court reinforced a critical principle: where medical boarding is available as an alternative to dismissal for incapacity, an employer is obliged to investigate and consider that option fully before terminating an employee’s employment.

The failure by an employer to do so, even taking into account any prior engagements between the parties, may render the dismissal substantively unfair.

Background facts

The applicant commenced employment with the Cape Peninsula University of Technology (CPUT) in 1996. Between January 2015 and December 2018, she was seconded and assigned to various positions before returning to her substantive post of Administrator: Human Capital in January 2019, which she occupied until her dismissal.

In 2018, the applicant was diagnosed with anxiety and depression. She later underwent the amputation of a finger in August 2021, and wrist surgery in April 2023. The applicant was absent from work due to ill health for several extended periods between January and September 2021 and was assigned light duties at various points. By November 2021, she had resumed her full duties.

Following her diagnosis in 2018, the applicant underwent a series of occupational therapy assessments between November 2020 and November 2022, which initially identified a mismatch between the requirements of her role and her capabilities, and recommended various interventions, including ongoing psychiatric treatment, regular counselling, and engagement with management. By November 2022, the occupational therapist noted improvement but maintained a recommendation for the continuation of treatment and further interventions. No further assessments or interventions took place thereafter.

On 6 June 2023, CPUT issued a notice requiring the applicant to attend an incapacity enquiry, stating that despite its attempts to reintegrate her return to work, this had been unsuccessful ‘due to [her] not meeting the performance standards’. It further recorded that if the applicant was ‘found guilty of any of the charges’ the chairperson would consider mitigating and aggravating factors before recommending ‘an appropriate sanction’.

Two days later, on 8 June 2023, the applicant addressed an email to CPUT attaching a medical boarding application form and requesting CPUT to complete the relevant sections. CPUT’s director of Human Capital Operations refused to engage with the request, stating that the matter had been referred to employee relations. No further steps were taken in this process prior to the applicant’s dismissal.

Notwithstanding that the applicant was on approved sick leave at the time, the incapacity enquiry proceeded on 23 June 2023 in her absence. The chairperson found that the applicant was unable to perform her duties effectively, that her prolonged absenteeism had compromised her work performance, and recommended dismissal. The applicant was summarily dismissed on 5 July 2023.

Findings at the CCMA

The applicant referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Following arbitration, the commissioner found that the dismissal was procedurally unfair, on the basis that the incapacity enquiry had proceeded in the applicant’s absence while she was on approved sick leave, and awarded compensation equivalent to one month’s remuneration for the procedural unfairness.

The dismissal was, however, found to be substantively fair. In reaching this conclusion, the commissioner accepted that CPUT had reasonably accommodated the applicant over an extended period, including by seconding her, that the various interventions had not been successful, and that no suitable alternative position was available.

On the issue of medical boarding, the commissioner was critical of the applicant for failing to pursue that option when it was allegedly raised with her in 2021 and found that she only showed interest in the process after the incapacity enquiry had been initiated. The commissioner concluded that there was no evidence suggesting that temporary boarding would address the applicant’s long-standing mental health challenges and, on that basis, found that dismissal was the only viable option.

Findings in the Labour Court

The applicant took the commissioner’s finding on review to the Labour Court.

The Labour Court found that the commissioner had committed a material error of law by failing to properly apply the principles embodied in items 10 and 11 of the old Code, which underscore that the fairness of a dismissal for incapacity arising from ill health depends on, among others, the feasibility of accommodation and the consideration of alternatives to dismissal (while the Court noted that the old Code had since been repealed and replaced, it confirmed that there was no material difference between the old and new Code in relation to incapacity).

On the issue of accommodation, the Court held that the various secondments between 2015 and 2018, which CPUT relied on as evidence of accommodation, not only predated the applicant’s diagnosis but had been motivated by concerns relating to the applicant’s alleged poor performance and workplace difficulties. These were, therefore, not measures to accommodate a medically established incapacity. Further, the Court found that no meaningful efforts were made to accommodate the applicant or identify alternatives to dismissal during the period from January 2019 until the initiation of the incapacity process in 2023.

In relation to alternatives, the Court applied the principles established in Wilcocks v Khawula NO & Others, in which it was held that where there is the prospect of medical boarding, this is an ’obvious alternative to dismissal that ought to be fully explored’. Accordingly, the Court found that once the applicant indicated her intention to pursue medical boarding, CPUT was required to consider and investigate that option as part of its obligation to explore alternatives short of dismissal, regardless of whether the employee had previously refused to engage with that option.

Instead, however, the evidence demonstrated that CPUT refused to facilitate or consider the applicant’s application for medical boarding because it believed she had previously declined that option, because the matter had already been referred to employee relations for an incapacity enquiry, and because her application was regarded as a pattern of ‘manipulative conduct’. The Court held that none of those considerations constituted a valid basis for refusing to investigate a potential alternative to dismissal.

Finally, and in relation to other grounds of review, the Court noted that:

• procedural defects can, depending on the facts, carry substantive consequences, but here the narrow finding of procedural unfairness (the enquiry proceeding while the applicant was on approved sick leave) did not on its own render the dismissal substantively unfair; and

• while not raised by the applicant, there was a significant disconnect between the stated reason for the applicant’s dismissal and the evidence advanced in support of it, in that much of CPUT’s evidence focused on allegations of poor performance, unreliability and laziness, rather than on any medically established incapacity. Although the Court did not pursue this as an independent ground for setting aside the commissioner’s award, it did note that the evidence raised 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.

In the circumstances, the Labour Court found that the applicant’s dismissal was substantively unfair and ordered CPUT to pay her compensation equivalent to 11 months’ remuneration (in addition to the one month already awarded for procedural unfairness at the CCMA).

Key takeaways

This judgment illustrates several key principles for employers:

• Medical boarding is an ‘obvious alternative’ to dismissal for incapacity where an employer’s benefit fund or insurer makes provision for this (whether temporary or permanent). This option mut be fully investigated before any decision to dismiss for incapacity is taken, failing which the subsequent dismissal may be regarded as substantively unfair. This is regardless of whether an employee previously refused to engage with a medical boarding application or only pursued this after the matter had been escalated to a formal incapacity process, as the obligation to explore alternatives short of dismissal continues throughout the process.

• In incapacity dismissals, the procedural and substantive aspects are closely intertwined. An employer’s failure to comply with the procedural requirements prescribed by the Code may have both procedural and substantive consequences, although certain procedural defects will not automatically render a dismissal substantively unfair.

• Employers should ensure that any incapacity process is clearly founded on an identified medical condition and supported by adequate medical evidence. An incapacity enquiry that is in substance driven by performance or conduct concerns, rather than a genuine assessment of the employee’s medical capacity, may be regarded as a dressed-up incapacity enquiry that undermines both procedural and substantive fairness.

Chloё Loubser is a knowledge and learning lawyer in the Dispute Resolution Department of Bowmans' Cape Town office and a member of the Employment and Benefits practice. Pascale Towers is a Senior Associate in the Johannesburg office who has experience advising both local and international clients across a broad range of industries on various employment-related matters.