Mental health awareness in the workplace has invariably surged since the start of the global COVID-19 pandemic. Recent statistics have uncovered that, in South Africa, only about twenty-five percent of the people with a diagnosable mental disorder currently receive treatment.
A combination of the ongoing stigma attached to mental illness and the severe shortage of funding in the public health sector means that countless employees suffer from an array of untreated disorders, such as depression, anxiety, schizophrenia, bipolar disorder, and of course, substance dependencies.
Given the aforementioned, employers now find themselves in a difficult position, they must ensure that workplace productivity is maintained without overlooking potential mental disorders amongst their personnel and, if left unmanaged, what the repercussions could mean for the employment relationship.
Many employers maintain an outdated view that the employee’s mental health should not be their concern. While there is no textbook solution to understanding an employee’s mental disorder, existing case law informs us that mental disorders in employees cannot be ignored. Employers that look to an employee’s mental illness as grounds for discrimination may find themselves in a precarious position.
Section 188 of the Labour Relations Act states that a dismissal is unfair if the employer fails to prove an acceptable reason for the employee’s conduct or capacity.
Incapacity arising from ill-health is regarded as a valid reason to terminate the employment relationship, provided that the employer has complied with Items 10 and 11 contained within the Code of Good Practice, Schedule 8 of the Act.
Investigating an employee’s mental disorder in the workplace is no easy undertaking. Employers may not always know where to begin if they wish to help the affected individual and maintain harmony in the work environment.
The first step would be to remove the stigma: communication between employer and employee is key to this process. All medical information available to the employer must be considered in determining the true nature of the employee’s illness. The employer further carries an obligation to determine whether the employee poses a danger to himself/herself but also to his/her colleagues within the workplace.
Employers should only consider a drastic step like dismissal after examination of the following points
- the nature of the employee’s job;
- the nature of the employee’s mental disorder;
- the extent to which the employee is hindered from performing his/her duties;
- the extent to which an employee can be accommodated in the workplace;
- the possibility of a reasonable alternative position;
- the nature and extent of the employee’s misconduct;
Employers need to establish the link between the employee’s mental health, the level of his/her work performance and whether the employee’s disorder may cause any misconduct that he/she may have committed. This may also be a great opportunity for the employer to establish whether the employee may need some time off to consult further medical experts.
Noticeable case law to this effect is the Labour Court (LC) matter of Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC) (16 May 2018) (Jansen). Jansen was dismissed for misconduct following a disciplinary hearing in November 2013, in which he had faced charges of unauthorised absence, transgressions of the employer’s workplace rules, and gross insolence. The employee raised his mental state (depression) and the fact that he was taking medication as a defence, yet the Chairperson rejected it due to a lack of evidence. Subsequent to this, the employee had obtained a psychological report, which report wasn’t considered by either the employer or the Chairperson. The Chairperson advised summary dismissal as an outcome in February of the following year, treating the case as misconduct alone without considering the route of an incapacity enquiry. At the Labour Court, the employee maintained that his behaviour had been attributed to his mental condition, which the employer had not taken into account.
The employer was ordered to reinstate the employee and pay six months’ compensation to him.
Employers ought to understand that mental health should be prioritised in every workplace, not seen as an issue that will invariably break down the employment relationship. The employees who are so afflicted are still human beings who deserve compassion and understanding in as far as the employer can assist or can accommodate such person, and in as far as the employee is determined to work in order to manage the mental disorder. There is hope that when a supportive work environment is created, and the employee has meaningful work to occupy him/her, then he/she will be in a stronger position to manage the mental disorder, which would release the pressure on the employment relationship. Each case would have to be dealt with according to its own set of circumstances.
In closing, if an employer elects to dismiss an employee following misconduct linked to a mental disorder, whilst knowing that the employee suffers from a mental disorder, the employee would have grounds to refer the dismissal on the basis that same is automatically unfair. The consequences may include monetary awards, compensation and/or the reinstatement of the employee.
Contact your nearest SEESA office for labour assistance, alternatively, leave your contact details on our website for a legal advisor to contact you.
About The Author:
Meggan Watson started her career at SEESA in 2015 and is currently a Labour, Consumer Protection and POPI Legal Advisor at SEESA’s Port Elizabeth branch. She obtained her LLB degree in 2012 at the University of the Free State and completed her articles in Bloemfontein.
References:
Legislation:
Labour Relations Act, 66 of 1995;
Case law:
Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC) (16 May 2018);
Articles:
“Employers may be ordered to pay up for ignoring mental health issues.”
Jacques van Wyk, Director, Werkmans Attorneys, and Andre van Heerden, Senior Associate, Werkmans Attorneys;
https://medium.com/swlh/managing-mentally-ill-employees-7c5cbdd11f32
“When An Employee Is Mentally Ill.”
Indi Samarajiva, Writer for The Startup, Colombo, Shri Lanka;
“Mental Health and the Workplace: the role of the Employer.”
Sujata Balaram, Editor: Commentaries at LexisNexis, Durban;
“The Real Status of Mental Health In South Africa.”
Author unknown;
SEESA Manual on Incapacity, ill health and poor work performance.