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At a disciplinary hearing in November 2013, the employee was charged with:

  1. Being absent for 17 days between 30 August and 5 November;
  2. Breaching the employer’s policy by failing to inform his manager of his absence;
  3. Insolence towards a superior; and
  4. Insubordination in that he refused to attend to a prisoner as instructed.

The employee admitted to all transgressions but defended his actions on the basis that his depression caused him to act out of character. Having found him guilty of the charges, Legal Aid SA dismissed the employee.

The employee then launched an action at the Labour Court on two different grounds:

  1. His dismissal was automatically unfair, in that it related to unfair discrimination against him on grounds of his disability; and
  2. He was being unfairly discriminated against as a result of his depression.

On behalf of the employee, his clinical psychologist submitted her evidence that the employee showed “temporary reactive depression”, which worsened in 2013, and that he was clearly not coping in his work environment. In her expert opinion, he was emotionally drained and unable to function properly in his daily tasks.

The court a quo found that the employee had put up a prima facie case in support of the reasons for his dismissal as alleged and that he had been unfairly discriminated against. The employer was ordered to retrospectively reinstate the employee and to further pay him six months’ salary as compensation.

On appeal, the Labour Appeal Court reiterated that an employee claiming an automatically unfair dismissal bears the burden of proof for the possibility of the reason for their ‘unfair’ dismissal.  As such, the central question was whether it may have been possible that the employee was subject to differential treatment. The Labour Appeal Court held that depression is a form of illness that calls on an employer to invoke the procedures set out in the ‘Code of Good Practice: Dismissal’ when addressing an employee’s incapacity.

In conclusion:

Depression may play a material factor when charging an employee for misconduct.

If it is established that an employee’s depression has impacted their state of mind and will to such an extent that they are unable to appreciate the wrongfulness of their actions, then dismissal due to misconduct is inappropriate and substantively unfair, and the employer ought to approach the issue in terms of incapacity or operational requirements.

Alternatively, if an employee’s depression does not impede their cognitive abilities and will, their depression may diminish their culpability and serve as a mitigating factor when deciding the appropriateness of a sanction.

Moreover, for an employee to succeed in an automatically unfair dismissal claim based on depression, they must provide evidence that the reason for their dismissal was their depression and that they were subjected to differential treatment on that basis.

In this case, the employee failed to plausibly establish that his misconduct was dominantly caused by his depression. He could not provide the necessary evidence that his depression precluded him from contacting his manager to inform him of his absence.  His psychologist who examined him a year before the misconduct also could not determine whether the employee’s state of depression was the underlying reason for his misconduct.

Despite the Labour Appeal Court deciding that the employee might not have committed the misconduct without his depression, depression as a contributing factor is insufficient to causally link an employee’s mental illness and their dismissal.

A final note:

The court repeated that depression would be considered when determining the substantive fairness of an employee’s dismissal. However, the employee in this case did not challenge the substantive fairness of his dismissal vis-à-vis the acts of misconduct for which the employer dismissed him.

Reference list:

  • De Rebus in 2020 (October) DR 39.
  • Legal Aid South Africa v Jansen (LAC) (unreported case no CA3/2019, 21-7-2020) (Murphy AJA with Waglay JP and Phatshoane ADJP concurring)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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