Introduction
The heightened focus on mental health in the workplace, has exposed the challenges employers face in managing employees’ well-being while ensuring productivity. In South Africa, where only about 25% of individuals with diagnosable mental disorders receive treatment, employers are increasingly required to address mental health issues among their staff. The combination of stigma and inadequate public health funding means many employees struggle with untreated conditions such as depression, anxiety, schizophrenia, bipolar disorder, and substance dependencies.
Employers are in a difficult position, balancing the need to maintain workplace productivity with the responsibility to recognize and address mental disorders among employees. The outdated belief that mental health is solely the employee’s concern is increasingly untenable, especially given the potential legal ramifications of ignoring mental health issues in the workplace. Employers who discriminate against employees based on mental health conditions may find themselves in legally precarious situations.
Legal Framework and Employer Responsibilities
Under Section 188 of the Labour Relations Act (LRA), a dismissal is deemed unfair if the employer cannot justify it with an acceptable reason related to the employee’s conduct or capacity. Ill-health, including mental disorders, is recognized as a valid reason for termination, provided the employer adheres to the guidelines outlined in Items 10 and 11 of the Code of Good Practice, Schedule 8 of the LRA (Refer Annexure A, page 3).
Investigating an employee’s mental disorder is a complex process that requires careful consideration. Employers should begin by fostering an environment of open communication to remove the stigma associated with mental illness. All available medical information should be reviewed to accurately assess the nature of the employee’s condition. The employer also has a duty to evaluate whether the employee poses a risk to themselves or others in the workplace.
Before considering dismissal, employers must carefully assess the following factors:
- The nature of the employee’s job and mental disorder.
- The degree to which the disorder impacts the employee’s ability to perform their duties.
- The potential for accommodating the employee within the workplace.
- The availability of reasonable alternative positions.
- The relationship between the mental disorder and any misconduct.
- Whether the employee needs time off to consult with medical experts.
Case Law: Jansen v Legal Aid South Africa
The Labour Court case Jansen v Legal Aid South Africa (2018) highlights the importance of considering mental health in disciplinary proceedings. In this case, Jansen was dismissed for misconduct, including unauthorized absence and gross insolence. During the disciplinary hearing, Jansen argued that his behaviour was influenced by his depression and the medication he was taking. However, the Chairperson dismissed this defence due to a lack of evidence, and a subsequent psychological report was not considered.
The employer ultimately recommended summary dismissal, treating the case as misconduct without exploring an incapacity enquiry. The Labour Court later ruled that the employer had failed to take Jansen’s mental health into account, ordered his reinstatement, and awarded him six months’ compensation.
Prioritizing Mental Health in the Workplace
Employers must understand that mental health is not a peripheral issue but one that should be integrated into workplace practices. Employees with mental health conditions deserve empathy and support, and employers should strive to accommodate them wherever possible. A supportive work environment, coupled with meaningful work, can significantly help employees manage their mental disorders, thereby reducing strain on the employment relationship.
Each case involving mental health should be approached on its own merits, with careful consideration of the specific circumstances. Employers who dismiss employees for misconduct related to a mental disorder, while being aware of the condition, risk facing claims of automatically unfair dismissal. The potential consequences include financial compensation, reinstatement, or both.
In summary, the growing awareness of mental health in the workplace necessitates a compassionate and legally informed approach from employers, ensuring that both productivity and employee well-being are maintained.
