Briefly, Mr Mogomatsi was a Senior Penetration Tester: IT Infrastructure Shared Services at Sanlam Life Insurance Limited. He alleged having experienced various incidents with his colleagues that left him no option but to resign. He then referred a constructive dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Dissatisfied that the incidents pointed out made out a case for constructive dismissal, the CCMA dismissed the claim.

The Labour Court

Mogomatsi took the matter on review before the Labour Court. The Court found that the arbitrator gave no weight to Mogomatsi’s mental health during the arbitration. Save for Sanlam making an attempt to try and show Mogomatsi that his conduct was not acceptable, no mention was made of his anxiety and depression. There was no evidence the employer considered an ill health process rather than a disciplinary process in the build up to Mogomatsi’s resignation. In the Court’s view, an assessment of Mogomatsi’s claim correctly made, should have incorporated the common cause fact of the mental ill health he suffered from during the material period. The Court found that Mogomatsi had shown that the employment relationship became intolerable and had been constructively dismissed.

Sanlam appealed the decision on the principal basis that no evidence was presented regarding Mogomatsi’s mental health issues during the arbitration proceedings. Therefore, the Labour Court erred in deciding the matter on that basis. Furthermore, Sanlam was never called upon to defend case that it had failed to treat Mogomatsi with the necessary sensitivity due to his mental illness, thus rendering his employment intolerable.

The Labour Appeal Court

The LAC held that in relation to mental illness and constructive dismissal, the facts of the matter needed to point to the employer having been aware or that they ought to have been aware of the negative mental health of the employee. Only when an employer was aware of an employee’s mental health issues and was indifferent or showed no concern, thus making continued employment intolerable, might a proper case for constructive dismissal be made. This was not so in this case. Accordingly, the Labour court misdirected itself when it adjudicated the review based on evidence that was not before the commissioner i.e. the mental illness. There was insufficient evidence to conclude that Sanlam made continued employment intolerable. Sanlam’s appeal therefore succeeded.

Conclusion

What the LAC emphasized is the importance of an employer, once becoming aware of mental illness or vulnerabilities suffered by an employee, showing concern. Employers have a general obligation to ensure a safe and healthy working environment and prevent and/or eliminate harassment. Failure to fulfil this obligation may result in employers being held vicariously liable under section 60 of the Employment Equity Act, 1998. In the context of a constructive dismissal, this however, does not result in a free pass to employees suffering from mental health concerns to allege a constructive dismissal - the employee would still need to prove that the employer was aware or ought to have been aware of their mental health issues/illness and that such employer was indifferent.