A recent judgment by the Labour Court dealt with the role that incapacity can play when an employee is charged with misconduct and whether an employer is required to exclude the possibility of incapacity in these circumstances.
In this matter, an employee was charged with misconduct for being absent for four or more days without a valid reason, noted law firm Webber Wentzel.
At the time, the employee’s previous transgressions relating to punctuality, unauthorised absence, fraud and negligence were noted on his disciplinary record, the firm said.
“The employee pleaded guilty at his disciplinary hearing, but in doing so, made several damning allegations against his employer.
“These included that there were no systems in place at the workplace to protect him, he felt uncomfortable at work, and that bad interpersonal relations were affecting him psychologically. He said he had absented himself from work as he felt trapped and sought to avoid psychological breakdown or brain paralysis.”
While the disciplinary chairperson accepted the employee’s guilty plea, he declared that the disciplinary process was not concluded, pending consideration of a clinical psychologist’s report.
The psychologist’s report was delivered, but it did not address whether any psychological issues were affecting the employee’s behaviour.
Nonetheless, the chairperson confirmed the employee’s dismissal on the basis that:
- Even if the psychologist’s recommendations were adopted, he needed to balance this against the employee’s need to fulfil his work obligations;
- It was critical that the employee had still not provided a reason for his non-attendance;
- There was no explicit finding of incapacity;
- It was likely that his behaviour would continue.
“The employee then referred an unfair dismissal dispute to the National Bargaining Councill for the Chemical Industry, where an arbitrator found his dismissal to be substantively fair, but procedurally unfair, in that he was essentially suspended without pay pending the outcome of the disciplinary hearing.
“On substantive fairness, the arbitrator found that the employee had breached the requirement to render services unless he gave a valid and acceptable reason for not doing so. In this case, during his absence, he never offered any explanation.”
Labour Court judgment
On review to the Labour Court, the employee argued that:
- The employer was bound to investigate the possibility that incapacity was the root of his misconduct, where there was a view that his conduct might be due to a psychological problem.
- The employer did not discharge the onus of establishing that dismissal for misconduct was justified (in circumstances where it was aware that the employee’s conduct might not be due to his own fault).
- An employer must explore all alternatives to dismissal.
- An employer must prove that incapacity is not the reason for the employee’s behaviour in circumstances where it might explain it before dismissing an employee for misconduct.
The Labour Court, however, thought otherwise. It found that:
- An employer bears the onus of justifying the fairness of a dismissal based on the reason given for that dismissal. While the reasons can sometimes become blurred, the employer must defend the dismissal on the basis of the reason it provides for the dismissal.
- If employees charged with misconduct believe that their physical or mental incapacity can explain their actions, then they can lead evidence to show that they are not at fault.
- In the present matter, the employee (i) had the opportunity to obtain a precise psychological diagnosis (ii) had the opportunity to advance psychological reasons as a defence to his charge of misconduct, and lead evidence to this effect, but he did not (iii) failed to provide a reason for not coming to work and (iv) never articulated any grievances about his unhappiness at work.
Ultimately, the Labour Court found that the prospects of the employee improving if he were reinstated were not encouraging and that his absenteeism was not a trivial matter, given his role within the company.
Accordingly, the employee’s review application was dismissed.
Why the case is important
This judgment is important as it highlights the role that mental health can play when an employee is dismissed for misconduct, and the employee raises incapacity as a defence, said Webber Wentzel.
“While in this judgment the employee’s dismissal was found to be substantively fair, it is important for employers to be aware of the mental health issues that employees may be experiencing and to address these appropriately.
“The processes to be followed in dismissing an employee for misconduct and incapacity are vastly different and require different considerations. The process to be followed becomes even more complicated when it is uncertain whether an employee’s incapacity played a role in their misconduct.”
These are developing issues that appear to be coming before our courts more frequently, which employers should be aware of, the firm said.
Other case law on this issue is instructive, and employers should bear in mind that:
- They have a duty to consider employees’ mental health
- They should exercise caution when considering disciplinary action against employees with mental health issues
- They should be careful about deciding that an employee’s conduct amounts to misconduct, ensuring no causal link between the conduct and the mental illness.
“This judgment indicated that employees charged with misconduct have an obligation to prove that their mental health played a role in their misconduct, especially when an employer was not previously aware of such incapacity.”
Commentary by Nivaani Moodley, Shane Johnson, Jenna Atkinson of law firm Webber Wentzel.