Dealing with Workplace Depression: Part 2

This Article Continued from Identifying Debilitating Depression in the Workplace

In our previous article, Identifying Debilitating Depression in the Workplace, we discussed the leading Labour Appeal Court (“LAC”) case regarding depression in the workplace, Legal Aid South Africa v Jansen. In this article we continue to explore the best way for employers to go about dealing with workplace depression to minimise risk and maximise employee.

Despite overturning the initial finding in Jansen v Legal Aid South Africa (i.e. in which  the Court held that the employee was automatically unfairly dismissed and unfairly discriminated against based on disability or another analogous ground or depression) the Court conceded that depression is common in the workplace as a result of the stresses and pressures of modern day life being what they are.

Employer’s obligation to deal with depression in the workplace 

Employers from time to time will need to manage the impact of depression on an individual employee’s performance. Depression can also have an impact on how employees must be disciplined. The approach to be followed will depend on the circumstances.

The instruction issued by the Court to: 

sympathetically [deal with depression] and … investigate it fully and consider reasonable accommodation and alternatives short of dismissal

seems like a tall order for employers who are struggling to manage daily operations. 

Potential penalties

Unfortunately, although most employers aim to limit their risks at the CCMA and Bargaining Councils, they are unaware of how they are supposed to deal with debilitating depression in the workplace. Firstly we advise that a differentiation that needs to be drawn between depression which incapacitates and depression which accounts for an employee’s misconduct. 

The potential penalties of their failure to do so can have significant financial implications for employers. Before the Legal Aid South Africa case overturned the finding in Jansen v Legal Aid South Africa, the employer would have been forced to pay five years’ remuneration and an additional compensation award of six months for automatically unfair dismissal and unfair discrimination based on disability or another analogous ground (depression). 

The Court also warned in the latest Legal Aid South Africa  case that depression must be taken into account when an appropriate sanction is considered. If it is not, a sanction of dismissal may be substantively unfair.

Depression as a form of ill-health

Depression as a form of ill-health or incapacitating depression may be a legitimate reason for terminating employment provided that it is done according to items 10 and 11 of the Code of Good Practice: Dismissal.  Employees who are temporarily unable to work’s position must be investigated and employers are obliged to consider alternatives to dismissal. If the employee’s depression is like to to impair his or her performance permanently an employer is obliged to reasonably accommodate the employee. Only when these steps fail, can the employer terminate the employment relationship.

Depression that accounts for misconduct

Where depression accounts for an employee’s misconduct, depending on the circumstances and the nature of the misconduct, dismissal may  still not be appropriate. In the Legal Aid South Africa case the Court conceded that it is not beyond possibility that depression may negate an employee’s capacity for wrongdoing. It is entirely possible that the employee may not be liable for misconduct on account of severe depression impacting on his state of mind and his will (cognitive and conative abilities).

When an employee is, therefore, unable to appreciate the wrongfulness of his conduct and unable to conduct himself in accordance with an appreciation for the wrongfulness, dismissal for misconduct is unfair and the employer needs to use incapacity or operational requirements depending on the situation to find the best way forward when dealing with workplace depression.

Disciplinary proceedings are, however, appropriate if the evidence shows that the depression does not negate the employee’s cognitive and conative abilities. If he or she is able to appreciate the wrongfulness of his conduct and act accordingly the culpability may, however, still be diminished. The employer’s failure to take the employee’s depression into account in mitigation when deciding the appropriate sanction may lead to a finding of a substantively unfair dismissal.

But how is this fine line between the aforementioned scenarios drawn? In the Legal Aid South Africa case, the Court held that where an employee alleges that he did not have the will to appreciate the wrongfulness of his action, the employee bears the onus to prove a factual basis for his defense. The rationale behind this finding is that the “managerial prerogative of discipline would be undermined and all employees suffering from depression, anxiety, alcoholism, grief etcetera.”

Conclusion

The clear message which should be learned from the latest case law regarding depression in the workplace, is that addressing depression in the workplace requires insight and sensitivity

Contact us for expert legal advice

Contact us today if you are you unsure of whether you have been following the correct procedures to address dealing with workplace depression. Are you concerned that you may incur expensive penalties as a result of unnecessary procedural errors? Contact one of our specialists today to consult regarding this issue or assist you in chairing an incapacity or disciplinary hearing at your convenience.  

Note:

If anyone you know is suffering from depression in the workplace, please do not hesitate to reach out for help today.