Western Cape Nature Conservation Board t/a Cape Nature v Commission for Mediation, Conciliation and Arbitration and Others

The third respondent, Ms Marsha Dyer, a field ranger with 16 years’ service, was dismissed in July 2017 after being found guilty of several acts of misconduct, including gross negligence involving a quad bike, insubordination, refusal to hand over keys, extensive unauthorised absenteeism, refusal to complete routine documentation, and damaging employer property. The factual basis for the misconduct was largely undisputed. At the disciplinary inquiry, Dyer did not attend. A vague and backdated medical certificate from a general practitioner suggested she was unfit for work due to an unspecified medical condition and hinted at possible psychiatric issues, but without a clear diagnosis. The employer proceeded with the inquiry in her absence. After dismissal, Dyer appealed but failed to provide a proper medical report despite being given an opportunity. At arbitration, later psychiatric evidence (obtained about a year after dismissal) showed she had suffered from a manic episode related to bipolar disorder at the time of the misconduct. The arbitrator found the dismissal substantively and procedurally unfair and ordered retrospective reinstatement. The employer brought a review application to the Labour Court.

The review succeeded in part. The arbitrator’s finding that the dismissal was procedurally unfair was set aside and substituted with a finding that it was procedurally fair. The finding that the dismissal was substantively unfair, as well as the order of reinstatement with limited retrospective backpay, was upheld.

The case clarifies the distinction between procedural and substantive fairness in dismissal disputes involving alleged mental incapacity. It confirms that vague medical certificates do not necessarily justify postponement of disciplinary proceedings, especially where appeal procedures provide further safeguards. Importantly, it reinforces that arbitrators may and should consider expert medical evidence obtained after dismissal when assessing substantive fairness, in line with the de novo nature of arbitration proceedings.