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We could never have guessed how greatly the Covid-19 pandemic would change our lives. Then came the police killings of George Floyd and other African-Americans; the surge in RIOTS in KZN; job losses; wildfires; political upheaval; and the deaths of close relatives and friends due to Covid, among other big stressors, all of which compounded the harm to our collective mental health. Mental health support became a serious business need in 2020, moving from a nice-to-have to a true business imperative. Big companies have established mental health days or weeks, four-day workweeks, and improved counselling benefits or apps, but what if your workplace doesn’t have any of these programs?

Mental Health is increasing in the South African workplace. Does the Labour Relations Acts dismissal categories provide employees with adequate protection from unfair dismissals? And does Mental Health fall within the ambit of the definition of Disability found within the Employment Equity Act?

Mental Health is a growing worldwide health concern in the workplace. Both the United Nations and the International Labour Organisation have highlighted mental disorders as one of the primary health problems in the international workplace. South Africa is no different as the local workplace is increasingly affected by Mental Health.

However, what is Mental Health? How is Mental Health dealt with in terms of the Labour Relations Act (LRA) dismissal categories, and is the protection offered against unfair dismissals adequate? And whether Mental Health is a disability. To answer these questions, the LRA dismissal 23 categories, the definition of disability found within the Employment Equity Act (EEA), The Code of Good Practice on Disabilities and Dismissals, and the Constitution are analysed.

That’s the worst thing about depression:  a human being can survive almost anything, as long as she sees the end in sight. But depression is so insidious, and it compounds daily, that it’s impossible to ever see the end.  The fog is like a cage without a key.” –

Elizabeth Wurtzel

The tragic Germanwings crash served as yet another reminder of how far employers are from understanding how to deal with Mental Health in the workplace, especially in high-risk professions. Research has proven that the common cognitive symptoms of Mental Health include poor concentration, a person being easily distracted, poor memory, slower thinking speed, problem-solving difficulties, struggling to find the right words to express one’s thoughts and or negative or distorted thinking patterns. As such, employees who suffer from Mental Health are more than likely given psychotropic medication which may affect an employee’s productivity and efficiency within the workplace and/or therapy which costs companies both time and the employee money.

Other common symptoms include forgetfulness and indecisiveness as well as withdrawal and extended sick leave. There is also the impact that Mental Health has on an employee’s cognitive ability which would suggest that employees who find their thinking more affected by the condition feel more incompetent at work than those who struggle more with a low mood or feelings of helplessness. Employees and employers need to note that just because someone is a high performer does not mean they do not suffer from mental health problems, high performers are usually just harder to detect.

Protection Afforded to Employees With Mental Illness Within South African Law

The LRA and Section 23 (1) of the Bill of Rights provides that everyone has the right to fair labour practices, as mentioned above. On this fundamental right, persons suffering from Mental Health are entitled to both a procedurally and substantively fair dismissal. This fundamental right is also upheld in Section 188 of the LRA.

One must note that currently, specific statutes exist that protect labour practices and thus must be applied before the Bill of Rights may be invoked. Section 188 of the LRA, as mentioned above, provides that a dismissal will only be fair if it is motivated by a ‘fair reason’ and ‘was affected in accordance with a fair procedure’. This section makes it clear that fair procedure and fair reason are two separate requirements. 

Substantive fairness, or fair reason, has two parts, first is to establish why the employee was dismissed, then the second is to establish the adequacy of that reason. If that reason falls within the scope of Section 187 – automatically unfair dismissals, the enquiry ends, unless the employer has a solid defence. If the reasons relate to the capacity or conduct of the employer, or reasons, not in Section 187, the adequacy of the reason must be assessed on a case by case basis.

Section 188 (1)(a) of the LRA provides three reasons through which employees may be dismissed. They relate to the conduct (or misconduct) and incapacity of the employee, and the operational requirements of the employer. This classification thus determines the forum in which the dismissal disputes are resolved and determines the principles that must be applied when deciding if the dismissal was in fact fair. For a dismissal to be fair, the concept of fairness requires a correlation between the seriousness of the employee’s conduct or incapacity (substantive requirement) and the employer’s action (procedural requirement).

The categories of dismissals do overlap in certain circumstances, but their procedures are very different. Incapacity, operational requirements, misconduct and automatically unfair dismissals will be looked at as forms of dismissing an employee with Mental Health. In determining whether a dismissal, through these various routes, is in fact fair, the justification is analysed, which depends on the reason for the dismissal given by the employer. In the case of incapacity, the justification is that the employee did not reach the expected attainable performance standard and no other alternative existed. In operational requirements, the justification will be that the employee became redundant. In the case of a dismissal for misconduct, the justification is that the employee has broken a known reasonable rule in the workplace. For automatically unfair dismissals the justification is the employer’s defence, that the dismissal was due to the inherent requirements of the job that the employee no longer had. These various forms will be discussed below.

The Labour Relations Act, No 66 of 1995 (LRA) is prescriptive in that it requires employers to reasonably accommodate the needs of an employee who are known to suffer from such mental impairments were the same impacts on the ability of the employee to perform his/her duties and responsibilities. Usually, alternative accommodation and/or appropriate alternative employment (appropriate to the employee’s capacity) are considered and only where these are impracticable may medical boarding be considered. The medical boarding, therefore, allows the employer to terminate the employment relationship by reasonable notice to the employee.  This is however regulated by Schedule 8 to the LRA, Items 10 and 11, failing which the fairness of such dismissal may be challenged.

If you suspect you are suffering from mental health issues it’s best to speak to a professional, check your company policy in this regard, if no policy exists speak to a legal professional to help guide you through what needs to be done.

Should you feel that this article is in any way applicable to you, we encourage you to speak to your HR about this, should you not feel comfortable doing so, consider speaking to your doctor.

**This article is provided for informational purposes only and not to provide legal advice. For more information on the topic, please contact the author – Email: info@imaniconsult.co.za