Identifying Debilitating Depression in the Workplace: Part 1

What Employers Should Know About Depression in the Workplace

Amidst rising unemployment rates, fear and uncertainty regarding the COVID-19 pandemic, polarisation in our society, and political unrest, it is unsurprising that many employees have reported that they are suffering from depression. 

In the recent leading case on depression in the workplace, Legal Aid South Africa v Jansen the Court instructs employers to “sympathetically” identify and address depression in the workplace. The relevant question for employers, therefore, is what obligations the Labour Appeal Court recently conferred on them?

In our two-part newsletter series to be published in November 2020 and December 2020, we will discuss the importance of identifying and dealing with debilitating depression in the workplace as discussed in this new case law. 

Lesser-known depression symptoms and consequences

Studies conducted by the South African Depression and Anxiety Group indicate that employers generally look for withdrawal from employees, crying and extended sick leave as signs of depression. However, the cognitive symptoms of depression tend to be the most debilitating and can affect all domains of an employee’s life. 

These symptoms include forgetfulness, indecisiveness and impaired decision-making skills. Productivity is consequently inevitably diminished. Clinical psychologist and psychiatrist, Frans Korb warns that even when an employee who suffers from depression reports to work whilst being ill, he or she will likely be five times less productive than an employee who was absent due to depression.

Due to the debilitating effect of the depression on the employee and the potential effect that it will have on productivity employers and employees are urged to act proactively in addressing this phenomenon. A failure to do so has shown to have dire consequences. 

Leading case law on depression in the workplace

Background 

One of the consequences of depression is that it can affect the employee’s conduct to an extent where dismissal for misconduct may be inappropriate. However, in order to qualify, the employee must be able to prove that he or she was unable to appreciate the wrongfulness of his or her conduct and unable to conduct him- or herself in accordance with an appreciation for the wrongfulness.

The leading case on how the Court differentiates between debilitating depression and misconduct which was the dominant cause for the dismissal is Legal Aid South Africa v Jansen.

The employee was employed as a Paralegal in 2007. He was diagnosed with depression in 2010 and subsequently participated in Employee Wellness Programmes in 2010, 2012, and 2013. His employer was aware of his condition as he had been booked-off sporadically from 2011 and they received reports from his psychologist regarding his deteriorating mental health when his senior represented his ex-wife and opponent in a personal litigious matter which later settled in 2012. Although he was promoted to a brand ambassador in 2013, his mental health deteriorated further, and he withdrew socially. 

Between 30 August 2013 to 5 November 2013 the employee was absent from work for 17 days, without notifying his manager telephonically or via email as prescribed by the employer’s policy. Furthermore, when his senior encountered him per chance and enquired regarding his absence and fail to contact the employer, he acted insolently towards his senior by making a dismissive hand gesture and simply walking away. A few days later the employee also refused to obey a reasonable instruction of his employer to attend to a client.

The finding of the Labour Court

The employee was subsequently dismissed at a disciplinary hearing for the allegations mentioned in the paragraph above. He referred his dismissal to the Labour Court. The Labour Court held in Jansen v Legal Aid South Africa that he was automatically unfairly dismissed and that he had been unfairly discriminated against in terms of section 6 of the Employee Equity Act on the grounds of disability or any other analogous ground (depression). 

The Court held that his misconduct was inextricably linked to his mental health and that the Employer could not prove that the reason or his dismissal was permissible. As a result, the Court ordered that he should be reinstated with full retrospective effect as well as six months’ compensation.

The finding of the Labour Appeal Court 

The employer could not abide by the ruling and referred the matter to the Labour Appeal Court. In this instance, the Court had to determine whether the dominant reason for the employee’s dismissal is his misconduct or his depression. 

According to the employee, his misconduct and depression were inextricably interlinked. He claimed that all times his misconduct was caused by his depression and that his depression occluded his ability to conduct him in accordance with an appreciation of the wrongfulness of his misconduct. Accordingly, he argued that he had no self-control.

The Court accepted that there was sufficient evidence to indicate that the employee was depressed. However, the employee could not prove that his depression caused specific acts of misconduct. His expert witness admitted during her testimony that she could not confirm that his depression caused his misconduct: she had not consulted with him prior to committing the misconduct and could not attest to his mental state at the time. She also admitted that the employee knew the difference between right and wrong and that he was able to act in accordance with that appreciation.

The Court also found that the employee remained functional from 2011 although he had been suffering from depression. He was also reasonably able to carry out his duties throughout most of this period and therefore was not wholly incapacitated. 

The Court held that the only requirement in terms of the employer’s policy was that he had to notify them that he would not be reporting for duty via phone call or email. It was clear that he was not debilitated to the extent that he was unable to do this as shown by the fact that he was at the CCMA and could have explained his absence to his senior, but was instead antagonistic.

Lessons for employers

Based on the above reasons, the Court found that in this matter, the true reason for the discipline was the misconduct, not his depression. The employee was relatively capable and knowingly conducted himself in contravention with the workplace rules.  As a result, his depression was not the proximate cause of dismissal. There was also not an adequate causal link between the employee’s depression and his depression to say that this was the cause of his dismissal. As a result, the Court overturned the Labour Court’s ruling and stated that the employee failed to establish a credible possibility that his dismissal was automatically unfair or discrimination.

Conclusion

In its closing statements, the Court stated that:

“Depression, sadly, is a prevalent illness in the current environment. Employers have the duty to deal with it sympathetically and should investigate it fully and consider reasonable accommodation and alternatives short of dismissal.”

If you suspect that employees are suffering from depression in the workplace it is imperative to address it according to the principles of the Code of Conduct on Key Aspects of Disability and the Employment Equity Act.

Contact us for expert legal advice

Contact us today for a consult regarding a comprehensive Disability Policy. Our Industrial Relations Specialists and Legal Specialists are also available to consult with you regarding this and many other employment law-related issues which your business may need to address. Contact us today for further assistance.

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