Covid-19, mental health and the workplace

In a report compiled by the United Nations (“UN”) (“the Covid-19 and Need for Action on Mental Health”), it notes that the covid-19 pandemic has had a negative impact on people’s mental health. A survey conducted by the South African Depression and Anxiety Group (“SADAG”), indicates that South Africans felt anxious, under financial stress and pressure and depressed due to the lockdown.[1]

In Jansen v Legal Aid (JA121/2014) [2018] ZALCCT 17, the Applicant (“Jansen”) was charged for the following acts of misconduct: absence from duty with permission; failure to timeously inform his manager for his absence; gross insolence towards his manager; and refusal to obey a lawful and reasonable instruction. Jansen was found guilty of all charges and subsequently dismissed.

Jansen’s case was that his dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act (“LRA”) as the dismissal related to a disability and/or an analogous arbitrary ground; and/or it was unfair discrimination in terms of section 6 of the Employment Equity Act (“EEA”).

In April 2010, Jansen was diagnosed with major depression, and referred to hospital for counselling and anti-depressants. In November 2011, he was diagnosed with depression with high anxiety. Jansen informed his employer (“Legal Aid”) of his diagnosis and the treatment he was undergoing. In September 2012, when Jansen attended his divorce hearing, it came to his attention that his manager was representing his wife. This aggravated Jansen’s mental health.

Jansen made several attempts to resolve the issue with management, but to no avail. This, together with other personal problems Jansen was experiencing, caused his mental health to deteriorate even further.

In November 2013, Jansen was served with a notice of a disciplinary enquiry. Jansen admitted the allegations but argued that his conduct was due to his mental health. The evidence submitted by Jansen relating to his mental health was rejected.

The Labour Court had to determine, inter alia, whether ignoring Jansen’s mental health and dismissing him fell within the parameters of section 187(1)(f) of the LRA. The Labour Court stated that the question is, does the discrimination suffered by Jansen have the potential to impair his fundamental dignity as a human being or affect him in a comparably serious manner? The Labour Court held that it does.

The Labour Court noted that Jansen’s conduct and his mental condition were inextricably intertwined. Put differently if it were not for Jansen’s mental health he would not have been dismissed.

The Labour Court further held that Jansen had been unfairly discriminated against in terms of section 6 of the EEA.

This judgment highlights that it is important for an employer who is aware of an employee’s mental health issues to make careful enquiries into the reasons of the employee’s misconduct before dismissing the employee.

[1] https://www.sadag.org/index.php?option=com_content&view=article&id=3092:sadag-s-online-survey-findings-on-covid-19-and-mental-health-21-april-2020&catid=149&Itemid=226