Mental health issues often make their debut in the workplace in the form of poor or lacklustre performance on the part of the employee. How employers handle such situations is of extreme importance.
South African National Standards
The SANS 45001 standard dealing with Occupational Health and Safety Management in South Africa was introduced in August 2018 and specifically acknowledges that an organisation’s duty to provide workplace safety includes the promotion and protection of both its workers’ physical and mental health. While mental health is a private matter, it cannot always stay that way when it is impacting an employee’s work performance.
Cases to Learn From
In L S v Commission for Conciliation, Mediation and Arbitration & Others (2014) 35 ILJ 2205 (LC), the court held that the employer failed to conduct a proper investigation as to why the employee was underperforming. The court held that when someone suffers from a mental illness there might not be a wilful failure to perform, but rather the inability of the employee to perform. Where the employer opted to categorise the issue as misconduct instead of incapacity for poor work performance, the court found that this was unfair.
This judgment illustrates the onerous duty placed on employers to conduct proper investigations where they seek to dismiss poor-performing employees who may suffer from depression, amongst other illnesses. It further highlights the importance of appointing skilled disciplinary chairpersons who are mindful of the finer intricacies of labour law and categorising the issues properly, so as to follow the correct procedures and apply the correct tests when chairing disciplinary hearings.
Jansen v Legal Aid South Africa (2019) JOL 42192 (LC) dealt with the dismissal of an employee who suffered from a mental condition of which the employer was aware. In this case, the employee was dismissed for misconduct in circumstances where his acts of misconduct were inextricably linked to his mental condition. The labour court found that the employer in this case was under a duty to reasonably accommodate the employee. The court also found that the employer failed to comply with its duty and that as opposed to dismissing the applicant for misconduct, the employer had a duty to institute an incapacity enquiry. The court found that the dismissal of the employee was automatically unfair in terms of Section 187 (1)(f) of the Labour Relations Act and that the employer unfairly discriminated against the employee in terms of Section 6 of the Employment Equity Act.
Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration & Others (2008) 29 ILJ 1239 (LC) provided some guidance for employers to follow when dealing with employees who suffer from ‘disabilities’. The employer must consider:
- Whether the employee is able to do his/her work.
- To what extent the employee is able to perform his/her duties.
- Whether they can adapt the employee’s current working conditions to accommodate the employee’s disabilities.
- If adaptation is not possible, the employer will have to find other suitable employment within its organisation if possible.
The Best Way Forward
From the case law and the various legislative provisions, the following is clear:
- When an employer is faced with an employee who is navigating mental health issues, the employee should be provided with as much support as reasonably possible and practicable. This may include an investigation by the employer to establish measures that may assist the affected employee or to adapt the working environment if this is practicable.
- Throughout the discussions with the employee, the employer should establish whether the illness is temporary or permanent and whether there are any alternatives possible to avoid dismissal.
- Furthermore, and irrespective of the duration of employment, the employer should always provide the employee with an opportunity to state a case.
- Should there be no alternative available short of dismissal, the employee may be dismissed for incapacity. However, in order to ensure that the employee is not successful in an unfair dismissal and/or unfair discrimination matter, the employer should be able to provide solid evidence that all viable alternatives were considered.
As we see an upward trend in the number of mental health issues facing people daily, it is critical for employers to be aware of and follow the guidelines that support these employees.
