New case shows whether depression can cost you your job in South Africa

There is a steady increase in the diagnosis of mental illness in the workplace, according to Jose Jorge, a director at Cliffe Dekker Hofmeyr Attorneys, who notes that mental illness still carries a social stigma which may make sufferers reluctant to seek help.

He said that, unlike other illnesses, mental illness may not manifest physically and is therefore harder to detect. This often leads to the suspicion that employees are malingering when diagnosed with a mental illness.

He added that mental illness may also have a profoundly negative effect on workplace relationships.

“Where an employer is aware that an employee suffers with mental health issues, it must consider the potential impact of the illness on the employee and on the workplace and apply the appropriate incapacity process,” he said.

“The employer failed to do this in Jansen v Legal Aid South Africa.”

The facts

Jorge explained that in 2010, Jansen was diagnosed with major depression, and subsequently in 2011 he was diagnosed with depression and high anxiety.

After divorcing from his wife in 2012 (where his direct manager represented his wife in the divorce proceedings), Jansen faced further aggravations to his poor mental state.

“In late 2012 Jansen’s clinical psychologist advised his employer of his issues at work and warned that these issues required resolution as soon as possible,” said Jorge.

“Jansen himself had appraised his employer of his condition. Jansen was regularly absent from work. He also began acting erratically. His behaviour was seen as insolent and insubordinate. In this period, he was diagnosed with manic depression,” he said.

Despite these warnings, in November 2013 Jansen’s employer had enough and charged him with misconduct.

The chairperson rejected Jansen’s explanation that his behaviour was due to his mental illness on the basis that there was no medical evidence corroborating this, and that the enquiry related to misconduct and not incapacity.

She also refused to consider medical reports showing that Jansen was on the verge of an emotional breakdown.

On 24 February 2014 Jansen was dismissed. This worsened his mental state. Jansen was eventually evicted from his rental accommodation. When the matter was finally heard in 2018, he was homeless.

Labour Court

Jansen approached the Labour Court contending that his dismissal was automatically unfair as it related to his disability, and that it was an act of unfair discrimination on a listed ground.

During proceedings, the court found that although Jansen may not have pleaded that he was dismissed because of his mental condition, he had throughout referred to his condition. His employer knew what case it was expected to meet, said Jorge.

“The court found that Jansen’s depression was the actual cause of his dismissal,” he said.

“He had provided his employer with proof of his illness. It had declined to accept this proof without challenging it. Jansen’s employer knew that he had a disability. It was under a duty to reasonably accommodate him. Instead of dismissing Jansen for misconduct, it had a duty to institute an incapacity enquiry.”

Jorge explained that the court had followed the principles for determining an automatically unfair dismissal as part of its judgement.

“Firstly, would the dismissal have occurred if Jansen did not suffer from a mental illness?”

“If the answer was yes, then the dismissal was not automatically unfair. If not, the question was whether Jansen’s mental illness was the most likely cause of the dismissal? If this inference could be drawn then the dismissal was automatically unfair,” he said.

As such, the court found Jansen’s dismissal to be automatically unfair and constituted unfair discrimination. The court ordered retrospective reinstatement (just less than five years’ back-pay).

“Employers should exercise caution when dealing with disciplinary issues that may be related to mental illness,” said Jorge.

“They should take care to identify whether an employee’s conduct is due to his or her mental illness. If so, the matter should be dealt with as one of incapacity rather than misconduct.”

Read: These are the changed BEE rules you need to know about – including the new Youth Employment Service

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New case shows whether depression can cost you your job in South Africa