Dismissal for misconduct, or for being depressed?


On 26 May 2018, the Labour Court handed down its Judgment in: Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC), which dealt with the dismissal of an employee for misconduct in circumstances where the employer was aware of the said employee’s manic depression state, and which state apparently led to his commission of the alleged misconduct.

Background facts

The Applicant (“Jansen”) was charged and dismissed for absenteeism, gross insolence and refusing to obey a lawful and reasonable instruction. Jansen did not dispute the allegations of absenteeism, insolence and insubordination. He challenged his dismissal before the Labour Court (“LC”), claiming automatically unfair dismissal in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995 (“the LRA”) in that, in his view, the true reason for his dismissal was his manic depression – a form of mental illness classified as a disability.

In the Labour Court

In the Labour Court, the Legal Aid South Africa (“the Employer”), while having a duty to begin, closed its case without leading any evidence and, after Jansen had testified, the Employer unsuccessfully applied for absolution from the instance. The evidence led by Jansen and his witness (his Psychologist, Dr Farre) was that Jansen suffered from manic depression as a result of his working conditions / workplace stress, including the fact that his wife was represented at their divorce proceedings by his Manager, Mr. Terblanche, in breach of the Employer’s Policies. Furthermore, it was that Jansen’s condition had worsened to the point where he had effectively lost control over himself, and was acting erratically and out of character around the time he was charged with misconduct.

The LC accepted that Jansen’s manic depression had been the true reason for his dismissal. That is, there was a causal link between Jansen’s mental condition and his dismissal. Put differently, the mental condition was the proximate cause of the dismissal, and not the absenteeism; insolence; or insubordination complained of.

The LC reasoned that, as the Employer had knowledge of Jansen’s condition, there was a duty to reasonably accommodate him, which duty the Employer failed to discharge. The LC held further that, instead of charging and dismissing Jansen, the Employer should rather have instituted an incapacity enquiry having regard to his well-known condition.

The LC concluded that the Employer’s failure to have any regard to the circumstances under which the disciplinary infractions occurred, and his dismissal in those circumstances had the potential to impair his fundamental dignity, which brought his dismissal within the ambit of section 187(1)(f) of the LRA and section 6 of the Employment equity Act (“the EEA”). Therefore, the LC held, because Jansen’s misconduct was inextricably linked to his mental condition, it was clear that the probable/proximate cause for his dismissal was the mental condition. As relief, the LC ordered Jansen’s reinstatement with full retrospective effect, and that the Employer also pay him compensation equivalent to 6 months’ salary as a solatium for the distress that he endured as a result of the Employer’s unfair conduct.

Conclusion and Comment

Whether the LC’s Judgment will be confirmed as correct by the LAC remains to be seen, but it does raise some important legal and evidentiary issues. Employers must be careful when dealing with employees who, to their knowledge, suffer from mental health issues. The primary to investigate is whether the employee concerned is guilty of misconduct or, in truth, suffers from incapacity by reason of ill-health. As found by the LC in this case, the risk of taking disciplinary steps in a case of incapacity is the automatic unfairness that the Court might find, if the employee concerned is able to demonstrate a causal link between the dismissal and their mental condition.