Glenford Ferus was employed as an executive chef by Le Franschhoek Hotel from 18 January 2018, earning R32,000 gross monthly salary. On 9 January 2019, while off duty, a chip fryer caught fire in the kitchen. Ferus rushed to the scene and, acting as safety officer, took control of the situation and helped contain the fire before emergency services arrived. The main kitchen burnt down, and Ferus inhaled smoke which damaged his lungs. He continued working to feed hotel guests but was sent for medical check-ups. From March 2019, after peak season, Ferus began experiencing panic attacks, anxiety, and sleep difficulties related to the fire incident. He was diagnosed with major depressive episode, general anxiety with panic attacks, and traces of post-traumatic stress disorder. Multiple psychologists confirmed the condition was directly linked to the workplace fire. Le Franschhoek gave Ferus two months off (August-September 2019) but did not pay for private inpatient treatment recommended in July 2019. Ferus eventually received inpatient treatment at Lentegeur Psychiatric Hospital from 28 October to 22 November 2019. The chief occupational therapist recommended Ferus return to work with support and reasonable accommodation. On 4 December 2019, Le Franschhoek dismissed Ferus on grounds of incapacity. Ferus referred an unfair dismissal dispute to the CCMA.
The review application was dismissed with no order as to costs. The CCMA arbitration award finding the dismissal substantively unfair and awarding 6 months' compensation was upheld.
Where an employee suffers incapacity due to a work-related injury or illness, item 10(4) of Schedule 8 of the LRA imposes a more onerous duty on the employer to accommodate the employee. This includes actively assisting with recommended treatment. Where medical evidence establishes that the employee's incapacity is temporary and not permanent, that treatment has been completed, and medical experts confirm the employee is ready to resume duties, and the position has not been permanently filled, dismissal on grounds of incapacity will be substantively unfair. An employer's failure to assist with recommended treatment for a work-related incapacity can be a relevant factor rendering a dismissal unfair. On review, a commissioner's award will only be set aside if it is a decision that no reasonable decision-maker could reach (Sidumo test); a decision that is wrong but not unreasonable will not be interfered with.
The court noted approvingly the commissioner's comment: "Had there been no fire, or had the applicant not risked his own life and health on behalf of the respondent, none of this would have happened." This underscores the moral dimension of the employer's duty where an employee is injured while going beyond their duties to protect the employer's property. The court also observed that in many review applications, the grounds are cast in terms closely resembling an appeal, where it is implied the commissioner was wrong or misdirected. The court emphasized that the threshold for review is extremely high and distinguishes between appeals (correctness) and reviews (reasonableness). The court noted the absence of evidence that Le Franschhoek complied with COIDA obligations to report the incident and pay compensation for the first three months, or assisted with UIF sick leave benefits, though this was not essential to the decision.
This case reinforces the heightened duty employers owe to employees incapacitated by work-related injuries or illnesses under item 10(4) of Schedule 8 of the LRA. It clarifies that where medical evidence establishes an employee's readiness to return to work after treatment for a work-related condition, and the position remains available, dismissal on incapacity grounds will be substantively unfair. The case emphasizes that employers must actively assist employees with work-related incapacity, including facilitating recommended treatment, rather than passively waiting for recovery. It also illustrates the high threshold for review applications under Sidumo - that a decision can be wrong but still reasonable, and courts will not interfere unless the decision is one no reasonable decision-maker could reach. The judgment provides guidance on assessing incapacity dismissals where the injury is work-related and treatment has been completed.