Mtshali v Momentum Investments – Dismissal for Incapacity Due to Ill Health

Case Summary: Mtshali v Momentum Investments – Dismissal for Incapacity Due to Ill Health

Details of the Hearing and Representation

The Applicant, Mr Thabani Mtshali, represented himself. The Respondent, Momentum Investments, was represented by Ms Yonela Ciliwe, a Labour Law Advisor. The matter was set down for hearing on [date to be confirmed] and [date to be confirmed] at 345 Pretorius Street, Pretoria, at 09h00.

The matter was heard under the auspices of the Labour Court in terms of the Labour Relations Act 66 of 1995 (as amended) (the Act or the LRA).

The Respondent led evidence through two witnesses, while the Applicant testified in his own case. The Respondent submitted a bundle of documents marked “B”, consisting of 70 pages, and the Applicant submitted a bundle marked “A”, consisting of 73 pages. The documents were admitted on the basis that they are what they purport to be.

Preliminary Issues

No preliminary issues were raised.

Background to the Dispute

The Applicant was employed by the Respondent as an Implementation Specialist. He submitted that he was employed from 1 April 2023 and dismissed on 6 June 2025. At the time of his dismissal he earned R54 933,33 per month. He sought retrospective reinstatement, should his dismissal be found to be both procedurally and substantively unfair.

Issues to Be Decided

The judge was required to determine whether the Applicant was indeed dismissed. If so, the judge had to establish whether the dismissal was procedurally and substantively fair. Should the dismissal be found unfair, the judge was required to determine appropriate relief in terms of section 193 of the LRA. The Applicant sought retrospective reinstatement and challenged both the procedural and the substantive fairness of his dismissal.

Survey of Evidence and Arguments

Submissions on behalf of the Respondent

First Witness: Ms Ciska Marx

Ms Marx testified under oath that she is employed by the Respondent as a Human Capital Business Partner and has been with the Respondent for eight years. She knows the Applicant as an Implementation Specialist who has been employed since 1 April 2023.

She was aware that the Applicant had held a discussion with his line manager, Ms Roestorf. At the time she was not sure what the discussion concerned, but she was later told that it related to personal issues affecting the Applicant.

She was then informed that the Applicant would be undergoing a wellness programme. The Applicant was asked whether he would have any difficulty being assisted by her, and he responded that he did not.

Thereafter the Applicant continued to submit medical certificates. One letter informed the Respondent that he had been hospitalised from 6 to 10 November 2023. He later submitted another letter stating that he had again been hospitalised, but this letter carried no return date.

She then instituted the disability process, which is followed whenever an employee is absent from work for more than ten days. In this case, the Applicant was absent for health reasons from 6 November 2023 until 15 January 2024.

While on sick leave, the Applicant submitted an occupational therapist’s report on 27 November 2023. The report indicated that he would be unable to perform his duties owing to depression, and it contained recommendations. When the Applicant returned to work on 16 January 2024, a meeting was held to assess how best he could be assisted, and he was given the opportunity to propose possible solutions. To integrate him into the team, a senior specialist was assigned to him, and the two of them signed process documents confirming that everything was in order.

The company had to make a decision about the Applicant’s situation because he continued to submit medical certificates over an extended period. On 14 May 2025, the Applicant was informed that an incapacity enquiry would be held on Microsoft Teams (virtually) and that it would be chaired by an independent chairperson. The process was explained to him and he was given the tools necessary to participate. WhatsApp messages were also sent asking whether he required any support before the enquiry. He made no further request in this regard.

Under cross-examination, the witness confirmed that the Applicant had received training for the work he was employed to do. She further stated that the Respondent had suffered financial loss because of mistakes made by the Applicant.

Under re-examination, the witness confirmed that the Applicant’s continued absenteeism was one of the reasons for his dismissal. The other was his tendency to submit a medical certificate every time he was due to return to work, often when the Respondent had deadlines for certain programmes.

Second Witness: Ms Elke Roestorf

Ms Roestorf testified under oath that she is a Senior Implementation Specialist with the Respondent and the Applicant’s line manager. She sits on a Momentum investment committee, which is highly detailed and deadline-driven.

The focus of these committees is on clients’ instructions, such as switching from one product to another, and the products concerned are multi-managed products. The team, of which the Applicant was a member, must ensure that client instructions are implemented correctly and on time so that service delivery continues without interruption.

The team signs off any cash flow that sits on the balance sheet of all Momentum clients, and it is split into two on a day-to-day basis. She was the team leader, and the Applicant reported to her as an Implementation Specialist.

She testified that the Applicant began his employment on 1 April 2023. In August of that year he approached her and explained that he had personal problems. She referred him to HR for the implementation of a performance plan, but before the plan could be implemented, the Applicant indicated that he was unable to attend because of ill health.

The Applicant returned to work in January 2024, and she received recommendations from his therapist on how he could be assisted. He was reintegrated into the team and, having been away for some time, had to be retrained on each of the products he had previously been trained on. Coaching was also provided to check whether he was coping and whether additional training was needed.

The Respondent had no choice but to follow the incapacity process, which was expected to take place in May 2025. The enquiry was postponed to 26 May 2025 because the Applicant had lost his grandmother, and it was postponed again to 29 May 2025 because the Applicant indicated that he was not ready.

Under cross-examination, the witness agreed that she was aware that the Applicant had been diagnosed with major depression and anxiety, and that his performance was affected by his health conditions. She also agreed that concerns about his health had been raised before the incapacity enquiry.

Under re-examination, the witness confirmed that it was unclear when the Applicant would be ready to return to work, and that the duty to indicate this rested on him. She further agreed that the Respondent had accommodated the Applicant in many ways from August 2023 to June 2025, that this had placed considerable strain on the team, and that the company had no option but to release him.

Closing Arguments for the Respondent

According to both of the Respondent’s witnesses, the Applicant began to experience personal challenges around August 2023. The Respondent appropriately referred him for professional support through its in-house Wellness programme after it was discovered that his performance had deteriorated.

On 27 November 2023, the Applicant submitted an Occupational Therapist (OT) report. The Respondent thereafter submitted a disability benefit application based on that report, and the relevant disability fund documents were submitted on the Applicant’s behalf. The OT report, at page 34 of bundle “B”, indicated that the Applicant was experiencing significant distress and that his functional abilities had been adversely affected to the extent that he could not effectively perform the inherent requirements of his role. Specifically, the report identified impairments in his functional capacity, accuracy and critical thinking skills, which compromised his ability to discharge his duties.

On the assistance offered, both witnesses testified that when the Applicant returned to work on 16 January 2024, he was reintegrated into the workplace and his responsibilities were temporarily adjusted to help him transition back into the business and settle into his role. The Respondent’s recommendations were accepted by his Occupational Therapist. His role did not require him to meet performance targets, and he was given retraining and ongoing support to help him rebuild his skills. No suitable vacancy could be identified during this period. The overriding consideration was his medical condition, which made him unsuitable for any available position, having regard to both his health and the inherent requirements of the roles.

Evidence on Behalf of the Applicant

Mr Thabani Mtshali testified under oath that his poor performance and poor attendance were caused by ill health. He was last booked off on 25 May 2025. He struggled with his mental health, and although performance measures were implemented before a formal diagnosis, the symptoms were already evident.

He stated that the dismissal was premature because Momentum was still willing to assist him, and that the Respondent had made no consideration of alternatives.

Under cross-examination, the Applicant denied any knowledge of an email dated 6 March 2025, at pages 8 to 9 of bundle “B”, which was sent to him and his doctor. The email asked when he expected to return to work, given that he had by then been absent for almost a month. It was answered by neither him nor his doctors.

There was no re-examination.

Closing Arguments for the Applicant

The Applicant submitted that the Respondent dismissed him on the ground of incapacity. His inability to perform consistently, and his absence from work, were caused by his diagnosis of major depression and anxiety, a medical condition of which the Employer was aware. This was not an ordinary case of poor work performance but one of ill-health incapacity. He argued that the Chairperson applied the incorrect legal framework, namely Item 9 of Schedule 8 of the Code of Good Practice, instead of Item 10.

The outcome document dated 6 June 2025 acknowledges his mental health diagnosis. Yet the Chairperson applied Item 9 rather than Item 10, linking his performance problems to his sick leave until 31 May 2025. The Applicant argued that this fundamental mismatch between the nature of the enquiry (incapacity) and the legal test applied renders the dismissal substantively unfair.

He further submitted that the Respondent failed to properly investigate his ill-health incapacity, as Item 10 of Schedule 8 requires.

Finally, he argued that the process was flawed from the outset: the incapacity enquiry was held while he was medically unfit, and its outcome was wrong because the wrong legal test was applied.

Analysis of Evidence and Argument

The judge considered all the evidence and the submissions of both parties. Section 138(7) of the LRA requires an award to be issued with brief reasons, and the judge therefore referred only to those submissions considered necessary to support his findings. The Applicant’s submission was that the Respondent had rushed his dismissal. The judge found that the Applicant was indeed dismissed, as he alleged. The onus therefore fell on the Respondent to prove that the dismissal was procedurally and substantively fair in terms of section 192(2) of the LRA.

In NUMSA v Vetsak Cooperative Ltd & Others (1996) 17 ILJ 455 (A) at 460, and in Fedlife Assurance Ltd v Wolfaardt [2001] 12 BLLR 1301 (SCA) para 32, the courts found that an employee, like any other, enjoys the right not to be unfairly dismissed. The Court in Fedlife went further:“More so, the Act was enacted to give effect to the right to fair labour practices guaranteed in Section 23(1) of the Constitution of the Republic of South Africa Act 108 of 1996. The right not to be unfairly dismissed is not only essential to the enjoyment of this constitutional imperative but is the most important manifestation thereof and further forms the foundation upon which the relevant sections of the Act are enacted.”

Section 188 of the LRA recognises misconduct, incapacity (whether due to poor performance or ill health or injury) and the employer’s operational requirements as valid reasons for dismissal.

The Code of Good Practice on dismissal based on ill health or injury, contained in Schedule 8, requires employers to treat dismissal as a measure of last resort. The employer must thoroughly investigate the extent of the incapacity, consider reasonable accommodation, and explore alternatives such as lighter duties or medical boarding.

In Parexel International (Pty) Ltd v Chakane and Others [2019] BLLR 1245 (LAC), the Court pronounced:“An employer need not tolerate prolonged absence. Fairness turns on the employee’s capacity, prognosis, and the impact on operations, and on whether the employee participates and provides meaningful medical information enabling assessment and accommodation.”

Consistent with this, in Epibiz (Pty) Ltd v CCMA and Others (2023) 11 BLLR 1188 (LC), the Court cautioned against non-informative medical certificates. Medical practitioners and employees should ensure that certificates substantively justify the absence and enable proper workplace decisions. The Respondent’s witnesses testified that the Applicant would most of the time furnish medical certificates with no return date, and that upon further enquiry there would be no response from either the Applicant or his medical team. The Respondent was thus left in limbo, not knowing when the Applicant would be available to resume duties.

Procedural Fairness

Section 188(2) of the LRA provides that any person considering whether the reason for a dismissal is a fair reason, or whether the dismissal was effected in accordance with a fair procedure, must take into account any relevant Code of Good Practice issued in terms of the Act.

The Applicant was afforded an opportunity to participate in the incapacity enquiry before his termination. He was also provided with disability documents to complete, because there was a benefit he could use to avoid dismissal. He chose not to complete those documents, thereby waiving an alternative to dismissal. It must also be mentioned that, according to the Respondent, it at one stage paid the Applicant his salary for three months to which he was not entitled. This was done at the request of his medical team, who submitted that having no income might exacerbate his condition.

Legal Issue

The question was whether the dismissal for incapacity due to ill health was fair in substance and procedure under section 191(5)(a)(i) of the LRA, having regard to Schedule 8 of the Code of Good Practice. The Applicant argued that the notice initiating the enquiry referred to a disciplinary process for “poor performance”, whereas the process that led to termination addressed incapacity. It follows that the dismissal was one for incapacity due to ill health rather than for poor performance.

Substantive Fairness

The Applicant was absent for 149 days in less than three years of employment. Considering this frequency and duration of absence, the negative operational cost impact, and the Applicant’s failure to demonstrate readiness to resume work, the Employer could not reasonably be expected to wait any longer. The principles in Parexel apply squarely to the Applicant’s case: it would have been unfair to expect the Respondent to wait indefinitely without knowing when the Applicant would resume his duties.

Employee Co-operation

The Applicant failed to furnish adequate medical reports explaining his return dates. He failed to complete the disability documents intended to assist him as an alternative to dismissal. Neither the Applicant nor his medical team responded to the Respondent’s emails seeking to establish the extent of his incapacity and a possible return date.

On this basis, the court found the reason for dismissal to be fair. The Respondent proved that efforts to assist the Applicant were made available, and that the Applicant chose not to make use of them. The Respondent had no option but to dismiss him, especially since every time the Applicant was due to return to work, he submitted a further medical certificate with no return date.

In light of the above, it is the court’s view that the dismissal was both procedurally and substantively fair. The court therefore ruled that Mr Thabani Mtshali was fairly dismissed, both procedurally and substantively.

Judgment

The dismissal of the Applicant, Mr Thabani Mtshali, was procedurally and substantively fair.

The matter was dismissed.

Key Takeaways

• An employer need not tolerate prolonged, unexplained absence, but it must investigate the incapacity and consider alternatives before dismissing.
• Employees who withhold return dates, ignore enquiries or decline to complete disability documents may be found to have forfeited alternatives to dismissal.
• Non-informative medical certificates weaken an employee’s position.

Bibliography

Cases

• NUMSA v Vetsak Cooperative Ltd & Others (1996) 17 ILJ 455 (A) at 460.
• Fedlife Assurance Ltd v Wolfaardt [2001] 12 BLLR 1301 (SCA) para 32.
• Parexel International (Pty) Ltd v Chakane and Others [2019] BLLR 1245 (LAC).
• Epibiz (Pty) Ltd v CCMA and Others (2023) 11 BLLR 1188 (LC).

Legislation

• Constitution of the Republic of South Africa, 1996, section 23(1).
• Labour Relations Act 66 of 1995, sections 138(7), 188, 191(5)(a)(i), 192(2) and 193.
• Schedule 8 of the Labour Relations Act 66 of 1995: Code of Good Practice: Dismissal, Items 9 and 10.