In Legal Aid South Africa v Jansen [2020] 41 ILJ 1644 (LAC), the Labour Appeal Court (LAC) considered the employer’s approach to misconduct involving mental health issues. The employee, diagnosed with depression, failed to report for work and ignored instructions on multiple occasions. Before the hearing was convened, the employee’s psychologist confirmed that his depression had worsened and that this accounted for his conduct. At the hearing, the employee did not dispute the charges against him but maintained that he was suffering from depression and had therefore, acted “out of character”. The employer argued that the misconduct was unrelated to the depression.

The court emphasised that employers must address mental health sensitively, and with due consideration for mental health concerns. This, however, does not precluded Courts from disciplining employees for misconduct. Employers should assess whether an employee’s condition directly impacts their behaviour and consider all evidence, including medical reports, before taking disciplinary steps. In Jansen, the dismissal was deemed procedurally and substantively fair, but the case underscores the importance of engaging with mental health evidence to avoid procedural missteps.

In Marsland v New Way Motor and Diesel Engineering (Pty) Ltd [2009] 30 ILJ 169 (LC), the Labour Court criticized the employer for failing to accommodate an employee’s mental health condition. Distinguishing between misconduct and incapacity is another challenge when mental health issues arise. Depression, as the court noted in Jansen, can qualify as ill health which necessitates an incapacity process rather than disciplinary action. Employers are urged to ensure they follow the correct procedure when faced with workplace issues. This may involve investigating the reasons for absenteeism or a lack of productive work by an employee before categorising behaviour as misconduct.

If the employee is unable to perform due to incapacity related issues arising from mental health concerns, employers are required to explore reasonable accommodation where this is possible. Such accommodation may include counselling, mentorship systems, performance improvement plans or other interventions, before resorting to disciplinary action. Overlooking these steps creates a possible risk of unfair dismissal, especially when medical evidence suggests an employee’s health condition influenced their behaviour.

Medical evidence plays a central role in workplace mental health cases. In L S v Commission for Conciliation, Mediation and Arbitration and Others [2014] 35 ILJ 2205 (LC), the Labour Court ruled that ignoring medical evidence during disciplinary proceedings rendered the dismissal procedurally unfair. However, the LAC in Sanlam Life Insurance Ltd v Mogomatsi [2023] 44 ILJ 2123 (LAC) clarified that medical certificates alone are insufficient to shift the burden of proof to the employer. Employees must provide credible evidence linking their condition to their workplace issues.

Constructive dismissal claims

Constructive dismissal claims involving mental health add complexity, as demonstrated in the Sanlam Life Insurance case. The employee alleged that workplace stress and anxiety forced his resignation. However, the LAC overturned the Labour Court’s finding of constructive dismissal, ruling that the employer had not been made aware of the employee’s mental health issues.

The LAC outlined two critical principles:

1. Proving intolerable conditions: Employees must demonstrate that the employer’s actions objectively rendered continued employment intolerable. For mental health cases, this requires evidence that the employer knew or should have been made aware of the mental health issues.
2. Cumulative impact of conduct: The court must examine the employer’s overall treatment of the employee. In Mogomatsi, no evidence indicated indifference or insensitivity to the employee’s medical condition.

This case highlights the need for proactive communication, where employees should be advised to inform their employers of circumstances affecting their health, while employers must remain vigilant for signs of distress to mitigate potential claims.

Tips for employers

Recent case law emphasises a structured and empathetic approach to workplace mental health. Employers can adopt the following practical steps:

1. 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.
2. Engagement and documentation: Maintain appropriate communication with affected employees and record these events to ensure fairness.
3. 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.
4. Policy development: Implement clear mental health policies emphasising prevention, support and workplace adjustments, if feasible.

Mental health 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 clearer guidance on how employers should align their actions against these principles to navigate this complex terrain effectively