Depression is an important issue, with about 264 million people suffering from depression according to The World Health Organisation. A recent Labour Appeal Court (LAC) decision* deals with depression as a ground for dismissal highlighting three key reminders for employers: (i) employers have a duty to consider employees’ mental health; (ii) employers should exercise caution when considering disciplinary action against employees with mental health issues; and (iii) employers should be careful when determining whether an employee’s conduct amounts to misconduct, ensuring that there is a shown causal link between the conduct and mental illness.

Facts

Mr X (the employee) was employed at the Legal Aid Board (the employer) from 2007 to 2014. The employee was employed as a paralegal. For the most part, and particularly in the first few years of his employment, the employee was a high performing individual in the workplace.

During 2010, the employee was diagnosed with depression. He received several medical certificates confirming his diagnosis. The employee disclosed this to his employer.

The employee was absent from work on several occasions. The employee failed to excuse himself for most of these absences. Eventually, the employer charged the employee with four counts of misconduct and disciplinary action was instituted against the employee.

At the disciplinary hearing, the employee did not dispute the substance of the charges. However, his defence was that he suffered from depression which caused him to act out of character. The chairperson of the disciplinary hearing rejected this defence and the employee was found guilty of the four charges of misconduct. The employee was subsequently dismissed.

The employee referred the dispute to the Labour Court claiming that his dismissal was automatically unfair.

Labour Court found dismissal to be automatically unfair

The Labour Court held that at, all relevant times, the employer was aware that employee was suffering from depression and that the employer failed to consider his mental state at the time of misconduct. Therefore, the true reason for the dismissal was the employee’s mental illness and not the alleged misconduct. The Labour Court found that dismissal of the employee was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995 as amended (LRA) and that the employee had been unfairly discriminated against on the ground of suffering from depression, in terms of section 6 of the Employment Equity Act 55 of 1998 as amended.

LAC overturned Labour Court’s decision

On appeal to the LAC, the employer’s main contention was that the employee was dismissed for misconduct and not depression. The employer also argued that the employee failed to establish a causal link between his depression and the misconduct that led to his dismissal.

The LAC stated that the key question to be answered, where an employee contends that his actions were caused by depression, is whether the dominant or primate reason for his dismissal was his misconduct or his depression.

The LAC commented that depression must be looked at as a form of ill health. A depressed employee may be dismissed for incapacity in terms of items 10 and 11 of the LRA’s Code of Good Practice: Dismissal. Alternatively, depression may play a role in an employee’s misconduct so much so that an “employee may not be liable for misconduct on account of severe depression impacting on his state of mind (cognitive ability) and his will (conative ability) to the extent that he is unable to appreciate the wrongfulness of his conduct and/or is unable to conduct himself in accordance with an appreciation of wrongfulness”. The employee bears the evidentiary burden to provide the factual basis of this defence.

The LAC found that the evidence showed that the employee did suffer from depression. However, the employee failed to present compelling evidence to show that he was dismissed for being depressed. Due to the nature of the employee’s misconduct, the employer therefore had a legitimate reason for instituting disciplinary proceedings against him.

The LAC further found that while it might have been the case that but for his depression, the employee may not have committed some of the misconduct, he failed to present evidence to show that the cause of his dismissal was his depression. The reason for the employee’s dismissal in this matter was his misconduct and not his depression.

The decision of the Labour Court that the employee’s dismissal was automatically unfair and amounted to unfair discrimination was therefore set aside.

Although the LAC overturned the Labour Court’s decision, the LAC nevertheless noted the following –

“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.”

This case is an important reminder to employers on two fronts –

Employers should be careful when determining whether an employee’s conduct amounts to misconduct or whether there is a causal link between the conduct and mental illness. This will also assist an employer in its decision on the appropriate course of action.

* Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37 (21 July 2020).

Mpumelelo Nxumalo is a Partner, Shane Johnson is a Professional Support Lawyer and Kgololego Pooe is an Associate at Webber Wentzel.