Kongo v Commission for Conciliation, Mediation and Arbitration & others [2026] ZALCCT 185

Date of Judgment & Seat of Court: 22 October 2026, Labour Court, Cape Town

Case No: C93/2024

Name of Judge(s): Lagrange J

Summary of Factual Matrix:

The applicant, a senior Human Resources Business Partner at the South African Rugby Union, had a long-running conflict with her manager. After her grievance against the manager was dismissed in 2022, she was suspended and charged with making unfounded allegations. From August 2022 she was booked off work with a major depressive episode attributed to these workplace stressors and was briefly hospitalised. Her psychiatrist and occupational therapist reported temporary but total incapacity, a guarded prognosis and a reassessment after twelve weeks. SARU conducted a written incapacity enquiry before an external chairperson and dismissed her with effect from 31 December 2022.

A CCMA arbitrator found the dismissal substantively and procedurally fair. The applicant applied under section 145 of the LRA to review the award, contending that the arbitrator had speculated that she would remain incapacitated, that SARU should have awaited the reassessment in January 2023, that the chairperson was biased, and that the absence of an oral hearing was irregular. The issue was whether the award fell within the bounds of reasonableness.

Summary of Findings:

[40] ‘However, the applicant's reliance on Witzenburg must be distinguished. In Witzenburg, the employer dismissed the employee on the basis that he was permanently incapacitated, relying on a stale medical report, whereas by the time the arbitration convened, the employee had received treatment, had fully recovered, and tendered uncontroverted medical evidence that he was fit to resume duty. The present matter does not concern a dismissal predicated on an erroneous finding of permanent incapacity on stale medical evidence, but rather the operational management of prolonged temporary absence where the prognosis is guarded and indeterminate.’

[43] ‘The LAC in Parexel established that a dismissal for temporary incapacity can be substantively fair notwithstanding that: there is no final or conclusive medical report establishing the precise prognosis for recovery or the definitive period within which recovery could be anticipated; the employer suffered no direct financial prejudice because the employee had exhausted paid sick leave and was on unpaid leave, and the employer had not demonstrated that it was impossible to appoint a temporary replacement[9].’

[44] ‘The LAC confirmed that where an absence is unreasonably prolonged and the prospects of resumption remain uncertain, an employer is entitled to exercise an election to terminate the employment relationship, in accordance with the dictum in Kievits Kroon Country Estate.’

[47] ‘In my view, the arbitrator's finding in this regard cannot be categorised as impermissible speculation. The statutory inquiry under Schedule 8 Item 10(1) requires the decision maker to determine whether an employee is likely to be absent for a time that is unreasonably long in the circumstances. By its very nature, an assessment of what is likely entails a prospective evaluation of future probabilities founded upon established facts.’

[48] ‘48.3 The date of 27 January 2023 was never certified by Dr Beath or Ms Jacklin as an anticipated return-to-work date, but was merely an appointment for a further reassessment, accompanied by an expressly guarded prognosis. 48.4 Crucially, it was common cause that the sole clinical trigger of Kongo's major depressive episode was her workplace environment, specifically her interpersonal conflict with Mangcu and the pending disciplinary hearing. 48.5 Those workplace stressors were immutable. Mangcu remained the head of the department, and SARU was entitled to proceed with the disciplinary enquiry. The arbitrator's deduction that placing Kongo back into the identical working environment under the same manager to immediately face the pending disciplinary inquiry would perpetuate her depressive condition was a rational inference drawn from the medical evidence and workplace realities.’

[49] ‘While the applicant argued that ongoing psychiatric treatment was intended to optimize her condition and build psychological resilience, the uncontroverted evidence established that her relationship with Mangcu had completely collapsed. In her written representations, Kongo described the environment under Mangcu as "untenable" and sought a permanent transfer out of the department. SARU led undisputed evidence that no alternative vacancies existed in other departments, that appointments were subject to competitive recruitment policies, and that Kongo's qualifications and skills were not transferable outside human resources.’

[50] ‘Furthermore, the applicant's reliance on the 12-week return-to-work program is undermined by the record. The return-to-work program was an incidental notation made by Dr Beath on a confidential Sanlam disability claim form; it was never formulated or proposed by Kongo in her submissions of 14 November 2022. Under cross-examination at arbitration, Kongo admitted that she never commenced any program with Ms Jacklin between 27 October and 1 December 2022 and conceded that she had no knowledge of what such a program entailed.’

[51] ‘By 27 January 2023, Kongo would have been continuously absent for 161 consecutive calendar days (over five months). Both Clause 16.2.8 of her employment contract and Clause 8.2 of the ER policy established a 90 day absence threshold in a 120 day cycle as a benchmark for incapacity termination. While contractual provisions cannot oust the statutory fairness requirements of Schedule 8, this threshold served as an agreed yardstick of what the parties contemplated as an intolerable operational disruption. Applying the principles in Kievits Kroon and Parexel (LAC), the arbitrator's conclusion that SARU was not required to hold the position open indefinitely in the face of ongoing operational uncertainty was a finding that falls comfortably within the bounds of reasonableness.’

[52] ‘Although review proceedings are concerned with the reasonableness of the decision based on the material before the arbitrator, it is not without significance that Kongo continued to accept temporary disability income benefits from Sanlam through May 2023 on the agreed common cause basis that she was temporarily incapacitated due to ill health. In May 2023, Kongo unilaterally cancelled her reassessment with Sanlam's occupational therapist and withdrew from the pension fund. Moreover, at no stage during the arbitration did Kongo tender a medical certificate certifying that she was cured or fit to resume duty. Her bare assertion from the witness box that she was well was contradicted by the objective documentary record.’

[53] ‘Turning to procedural fairness, the applicant's challenge regarding Zietsman's failure to recuse himself is without merit. In her representations of 14 November 2022, Kongo merely requested that SARU appoint another chairperson on the basis that Adv Zietsman might be familiar with the disciplinary allegations. When SARU declined that request on 16 November 2022, Kongo (assisted by her attorneys) did not move any formal recusal application before Adv Zietsman himself, as recorded in paragraph 6.37 of the agreed pre-arbitration minute.’

[54] ‘Applying the test in Grindrod Logistics, disqualifying bias requires a reasonable apprehension of bias held by an objective, informed observer. Zietsman had merely presided over a disciplinary hearing on 19 September 2022 that was postponed at the outset due to Kongo's illness; no evidence was led and no credibility findings were made. Incapacity is an objective, no fault operational inquiry governed by medical evidence. Zietsman explicitly circumscribed his inquiry to the medical evidence and excluded the disciplinary merits from his consideration. The arbitrator's finding that Zietsman's prior involvement did not render the inquiry procedurally unfair is unassailable.’

[55] ‘The procedural challenge regarding the paper inquiry is equally unfounded. As mentioned, the decision in PRASA v Moreki and Rand Water Board v CCMA & Others held that pre-dismissal procedures need not be formalistic, and a departure from internal policy guidelines does not invalidate a dismissal absent demonstrable prejudice. Kongo was medically unfit to attend the workplace in person, which was the very reason her disciplinary hearing could not proceed. Inviting written representations, which she prepared with the benefit of legal representation, afforded her a full and fair opportunity to state her case. When pressed under cross-examination at arbitration to identify any prejudice or any evidence she was prevented from presenting on paper, Kongo was unable to identify a single material fact.’

[56] ‘The remaining procedural complaints concerning the conflation of processes and Zietsman's contact with SARU are of no moment, in my view. The disciplinary proceedings were an unavoidable contextual reality because Kongo's own specialists identified them as a primary cause of her depression. Zietsman's inquiry to SARU was a minor administrative clarification regarding the interaction between the internal inquiry and the Sanlam claim, which he transparently set out verbatim in his report. It caused no failure of natural justice.’

[57] ‘Even if the award were reviewable, the applicant's claim for retrospective reinstatement could not be sustained under section 193(2) of the LRA. Under section 193(2)(b), reinstatement is precluded where the circumstances surrounding the dismissal make continued employment intolerable. Kongo's email of 10 October 2022 contained vitriolic, unretracted accusations of racism, bad faith, and dishonesty against senior executives and her colleagues. At arbitration, Kongo refused to retract these statements or offer an apology, confirming that she stood by what she had written. Under section 193(2)(c), reinstatement is reasonably impracticable where an employee is medically incapable of rendering services. Kongo drew disability benefits through May 2023 and failed to tender any medical evidence establishing that she had recovered.’

[58] ‘Evaluated against the review standard in Sidumo Another v Rustenburg Platinum Mines Ltd and Others [10] and Standard Bank of South Africa Ltd and Others[11] the arbitrator's conclusion that Kongo's dismissal for ill health incapacity was substantively and procedurally fair is an entirely reasonable outcome supported by the evidence. The award permits no interference on review.’

[59] ‘Consequently, the review application falls to be dismissed. Regarding costs, the requirements of law and fairness in terms of section 162 of the LRA, as articulated in Zungu v Premier of the Province of KwaZulu-Natal & Others,[12] dictate that there should be no order as to costs.’

Relief: The review application was dismissed, the Court holding that the arbitrator's finding that the ill-health incapacity dismissal was substantively and procedurally fair was reasonable. No order as to costs was made.

Judgment on SAFLII