We have experienced a marked increase in clients seeking  legal advice on how lawfully and fairly to deal with employees in the workplace who may be suffering from a mental health illness or experiencing difficulties, which are in turn negatively impacting on their behaviour and/or performance.  While mental health related issues in the workplace  are not new, the stresses of the current pandemic and the isolation of working from home have exacerbated existing conditions, and in other instances resulted in new diagnosis of , inter alia, anxiety and depression.

Employees suffering from mental health issues often do not disclose these to their employers for various reasons including, inter alia, fear of discrimination by the employer. More often than not the employer only becomes aware of the employee’s illness when the employer seeks to discipline the employee for misconduct and /or address their poor performance.

It has long been accepted by our courts that mental illness is an illness like any other and must be treated as such. The Code of Good Practice: Dismissal (“the Code”) found in Schedule 8 to the Labour Relations Act, 66 of 1995, sets out in items 10 and 11 guidelines for employers to follow when dealing with an injured or ill employee.     

Item 10 of the Code provides the following guidance to employers when dealing with an employee who may be incapacitated due to illness or injury:  

“Incapacity on grounds of ill health or injury may be temporary or permanent.  If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury.  If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal.  When the alternatives are considered, relevant factors may include the nature of the job, the period of the absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee.  In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.

The Code also provides that in the process of the investigation the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

A proper investigation as outlined in item 10 is critical to dealing with an ill employee lawfully and fairly.   The investigation should not be a mere box ticking exercise but should be a genuine one in which the employee is consulted, and the impact of the employee’s illness on the employee’s performance is determined.    

Mental illness can be a complex and difficult illness to manage and treat; and it is therefore important that each instance is dealt with on its own merits and with the necessary sensitivity.  Given the nature of the illness,  the employee may need to be consulted and counselled,  and the situation investigated,  over a longer period of time than what may ordinarily be sufficient for a physical injury or illness.  It is also important to bear in mind that specialist advice and or assistance is likely to be necessary.  This could include, inter alia, input from the employee’s treating psychologist or psychiatrist, reports provided by the employer’s employee wellness program provider if such a program exists, or feedback from an occupational therapist.  In the matter of NUMSA on behalf of White and Lear Automotive Interiors (Pty) Ltd (2005) 26 ILJ 1816 (BCA) an arbitrator held that, in the absence of expert evidence by an occupational health expert relating to the degree of the employee’s incapacity and the work environment, he could not find that a dismissal for incapacity was fair as, without such evidence, the proposition that the employee’s work could not be adapted or he could not be given alternative work could not be tested. 

The Code distinguishes between temporary and permanent incapacity.  In an instance of temporary incapacity, it would be fair to dismiss an employee only when there is no prospect of the employee recuperating in a time during which the employer can manage without suffering significant loss as a result of the employee’s absence and no alternative/ adapted employment exists for the individual.  

In an instance of permanent incapacity for the position in which the employee was originally employed, it would be fair to dismiss the employee only when there is no alternative or adapted employment for the employee.

It is worth noting that our courts have found that it is not necessarily unfair to reduce the employee’s salary to that ordinarily attached to the alternative position provided that the search for alternative positions is serious and genuine.  

If, upon completion of the investigation, it is apparent that the employee cannot reasonably be accommodated within the company, the employee  must be given an opportunity to state why they should not be dismissed.  This need not be a formal inquiry, but the employee must at least be afforded the opportunity, assisted by a trade union representative or fellow employee, to motivate why they should not be dismissed or to provide alternatives to dismissal. 

As mentioned above, the employer often only becomes aware of an employee’s mental illness when the employer seeks to discipline the employee for misconduct and /or address their poor performance.   Incapacity (illness) and misconduct or poor performance may overlap, and it is therefore not always clear how one should proceed in these circumstances.   

In the case of Legal Aid South Africa v Jansen [2020] 11 BLLR 1103 (LAC) the Labour Appeal Court dealt with, amongst others, alleged incapacity and misconduct.  At a disciplinary hearing into alleged misconduct Mr. Jansen blamed his behaviour on his depression. When dismissed for misconduct, Mr. Jansen approached the Labour Court alleging that his dismissal was automatically unfair because he had been dismissed due to his disability i.e., his mental illness. The Labour Court found in Mr. Jansen’s favour and Legal Aid South Africa appealed the decision.  

In dealing with the connection between mental illness, specifically depression in this case, and misconduct, the Labour Appeal Court found as follows:

  1. Depression is a form of ill health,  and incapacitating depression may be a legitimate reason for terminating an employee’s employment provided that it is done fairly in accordance with items 10 and 11 of Schedule 8;
  2. Depression may play a role in an employee’s misconduct; 
  3. Severe depression impacting on an employee’s state of mind (cognitive ability) and will (conative ability) to the extent that the employee is unable to appreciate the wrongfulness of their conduct and /or is unable to conduct themself in accordance with an appreciation of wrongfulness may negate the employee’s capacity for wrongdoing.  In such cases, dismissal for misconduct would be inappropriate and substantively unfair, and the employer would need to approach the difficulty from an incapacity or operational requirements perspective; 
  4. Conative ability is a question of fact and an employee denying conative ability bears an evidentiary burden to prove the factual basis of the defence; 
  5. Where the evidence shows that the cognitive and conative abilities of an employee have not  been negated by depression, and the employee is able to appreciate the wrongfulness of their  conduct and act accordingly, the employee’s culpability or blameworthiness may be diminished by reason of the depression.  In which case, the employee’s depression must be considered in determining an appropriate sanction.

The LAC concluded with the following:

“[50] As already discussed, but worthy of repeating, that is not to say that the depression of an employee is of insignificant relevance.  Depression, sadly, is a prevalent illness in the current environment. Employers have a duty to deal with it sympathetically and should investigate it fully and consider reasonable accommodation and alternatives short of dismissal.  In addition, where depression may account in part for an employee’s misconduct, depending on the circumstances and the nature of the misconduct, dismissal may not be appropriate…”

In the more recent case of Pahlanga v The Petroleum Oil and Gas Corporation of South Africa (PetroSA)Case no C564/2019 9 July 2021) the Labour Court was again called upon to consider the dismissal of an employee for misconduct in circumstances where the employee had alleged his unauthorized absenteeism from work was due to depression.  Unlike the Jansen case, where Legal Aid South Africa had been aware of Mr. Jansen’s depression prior to the alleged misconduct and Mr. Jansen had presented substantial evidence of his existing mental illness, a report from a clinical psychologist to whom Mr. Pahlanga had been referred by the chairperson of the disciplinary hearing did not make any finding that Mr. Pahlanga’ s conduct was due to a psychological condition.   In addition to this, prior to the institution of disciplinary proceedings there was no evidence of Mr. Pahlanga having suffered from a psychological condition.  

The question before the Labour Court on review was whether the employer was bound to investigate the possibility that incapacity was at the root of the employee’s misconduct, and if so, to exhaust all alternatives short of dismissal, before terminating the employment relationship.    

The Labour Court held the following:

“[36] …if an employee charged with misconduct believes that their actions can be explained as something wholly or partially beyond their control because they are suffering from a physical or mental incapacity, the employee can lead evidence to show that they are not at fault, or that the degree of fault that can be held accountable for is diminished by their condition and warrants the adoption of other measures before dismissal can be justified.  

[37] However, the employer is not obliged to eliminate all possible explanations for what appears to be deliberate and willful misconduct of an employee, in circumstances where other possible explanations were not previously known to the employer, or were not obviously apparent.  In this regard, the principle that the employer should exhaust all possible alternatives to dismissal must be contextualized.  It is only in the case of anticipated unreasonably long-term absence from work in a case of incapacity, that schedule 8 requires an employer to ‘investigate all alternatives to dismissal.’

… ”

The cases of Jansen and Pahlanga both deal with the possible overlap between misconduct and ill health, but what about poor performance and ill health?  

Items 8 and 9 of the Code provide guidelines to employers dealing with poor performance in the workplace.  Unlike instances of misconduct, where the employer is not obliged to eliminate all possible explanations for the misconduct,  Item 8 requires an investigation to establish the reasons for the unsatisfactory performance and the consideration of other ways, short of dismissal to remedy the matter, prior to terminating the employee’s employment.  During the above mentioned process the employee has the right to be heard and to be assisted by a trade union representative or a fellow employee.   

Where an employee alleges that their unsatisfactory performance is due to mental illness,  the employer would not be acting unreasonably to request proof of this from the employee in instances where there is no evidence of the employee suffering from such a condition prior to the performance investigation.  If the employee fails to produce any evidence of their own when called upon to do so, I propose that, unlike in instances of misconduct where the employer is permitted to proceed without further investigation, there is some obligation on the employer to initiate its own investigation into the existence of a mental illness.   Should this investigation fail to produce any reasonable evidence of an existing condition, the employer would be justified in continuing with the dismissal process provided that it has complied with Items 8 and 9.   Where the investigation returns evidence of a psychological condition and that such a condition has an effect on the employee’s ability to satisfactorily perform the functions for which he or she was employed the employer would be advised to continue in accordance with Items 10 and 11 of the Code.

A healthy, happy  and ultimately productive work force is the desire of all employers, but this can only be achieved with commitment and constructive participation by both parties.  Employers will be well served by investing in creating a work culture that does not promote “presenteeism,” is devoid of the stigma associated with mental illness, is transparent in how it deals with cases of potential employee capacity and maintains the strictest confidentiality in relation to an employee’s personal and/or  medical  information.    Employees have an equally important part to play, and this includes reporting difficulties as soon as they arise as well as actively and constructively participating in any investigation, which the employer may initiate.  

Justine Del Monte – Director

Justine Del Monte & Associates Incorporated