World Day for Safety and Health at Work, celebrated on 28 April brings to attention the need for creating safe spaces in the workplace which include mental health and wellbeing.
According to the South African Federation for Mental Health, about 13% of South African employees live with a diagnosed mental health condition. Interestingly, more than a third of working South Africans experience excessive daily stress.
From productivity impacts to absenteeism and performance implications, the effects of mental health issues on companies is profound. As such, the World Health Organisation estimating the economic cost of untreated mental health cases at approximately US$1 trillion globally every year.
Employers need to proceed with sensitivity
Against this backdrop, employers must balance empathy and appropriate support for employees with their operational needs. The Occupational Health and Safety Act 85 of 1993, SANS regulations, and South African case law provide a framework to achieve this balance.
Recent judgments offer critical insights into managing mental health issues that relate to misconduct, incapacity and constructive dismissal.
For instance, in a recent case before the Labour Appeal Court (LAC), the court scrutinised the employer’s handling of misconduct that involved mental health concerns. The employee, who had been diagnosed with depression, repeatedly failed to report for work and ignored instructions.
Before the hearing, the employee’s psychologist confirmed that the depression had worsened. This deterioration accounted for the employee’s behaviour. At the hearing, the employee did not dispute the charges. However, he explained that his depression caused him to act “out of character.”
The employer, in contrast, argued that the misconduct was unrelated to the depression. As a result, the court found the dismissal both procedurally and substantively fair. Nevertheless, it emphasised the importance of treating mental health with sensitivity and proper consideration.
Distinguishing misconduct from incapacity
Mental health conditions must be considered during disciplinary processes. Employers are legally obligated to investigate whether a mental illness contributed to misconduct. Ignoring such factors can lead to findings of procedural unfairness. Therefore, obtaining medical evaluations and considering expert reports are critical steps before imposing any sanction.
Employers must determine whether an employee’s mental health condition directly impacts their behaviour. To do this effectively, they must assess all available mental health evidence, including medical reports. Only after this evaluation should they proceed with disciplinary steps. Taking this approach helps employers avoid procedural missteps.
Depression can qualify as ill health. In such cases, it may require an incapacity process instead of disciplinary action. Employers should ensure they follow the correct procedures when dealing with workplace issues. This process includes investigating the reasons for absenteeism or unproductive behaviour before classifying it as misconduct.
If an employee cannot perform due to incapacity linked to mental health concerns, the employer must explore reasonable accommodations. These accommodations may include counselling, mentorship, performance improvement plans or other interventions. Therefore, skipping these steps increases the risk of an unfair dismissal, especially if medical evidence indicates the employee’s health condition influenced their actions.
The Importance of medical evidence
In L S vs Commission for Conciliation, Mediation and Arbitration and Others [2014] 35 ILJ 2205, the Labour Court ruled that employers who ignore medical evidence during disciplinary proceedings risk making a procedurally unfair dismissal.
Essentially, employers must review any medical evidence that directly influences an employee’s behaviour when determining an appropriate sanction.
Similarly, in Sanlam Life Insurance Ltd v Mogomatsi [2023] 44 ILJ 2123, an employee claimed that workplace stress and anxiety had “forced” his resignation. However, the LAC overturned the Labour Court’s finding of constructive dismissal. It held that the employer could not be held liable because the employee had never disclosed his mental health issues.
Constructive dismissal claims require clear communication of mental health concerns. If employees do not inform employers of their mental health challenges, employers may not be held liable for failing to accommodate them. Nonetheless, employers should proactively create a supportive environment, encourage early disclosure, and document all efforts to accommodate employees, thereby reducing legal exposure.
Shared duties around mental health
These cases underscore several key principles that employers must consider when addressing employee wellbeing.
Employees must prove that the employer’s actions rendered continued employment intolerable. At the same time, courts must assess the employer’s overall treatment of the employee, rather than isolated incidents.
Ultimately, both parties have responsibilities. Employees must inform their employers of any circumstances that affect their health. Meanwhile, employers must stay alert to signs of distress. Doing so helps them mitigate risks and avoid potential legal claims.
Legal lessons for employers
Recent case law emphasises a structured and empathetic approach to workplace mental health and misconduct.
Employers can adopt the following practical steps:
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Training and awareness
Equip managers to recognise early signs of such issues manifesting and provide appropriate support, which must be treated confidentially for privacy reasons.
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Engagement and documentation
Maintain appropriate communication with affected employees and record these events to ensure fairness.
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Exploring alternatives
Before pursuing any possible disciplinary steps, consider if that is appropriate or whether incapacity processes should be adopted, with reasonable accommodation and ongoing medical assessments.
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Policy development
Implement clear mental health policies emphasising prevention, support and workplace adjustments, if feasible.
In conclusion
Mental health and misconduct challenges in the workplace require employers to balance sensitivity to the issues against operational needs.
By adopting a proactive, informed approach, employers can foster a supportive work environment while mitigating risks. South African courts have provided clear guidance on how employers should align their actions against these principles to navigate this complex terrain effectively.
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Fiona Leppan | Director | Employment Law Practice | mail me | |
Kgodisho Phashe | Senior Associate | Employment Law Practice | mail me | |
