Author: Shahnaaz Bismilla and Kerry Gantley (Cowan-Harper-Madikizela Attorneys)
The work environment has changed drastically over the last few years and as we transition to the fourth industrial revolution, employers need to be aware of the changing risks that business will face. With technology, we spend more time in meetings, at our desks and leading sedentary lifestyles. In South Africa, the state of the economy, with its political, economic and financial factors means that employees are living in much more stressful times.
It, therefore, comes as no surprise that stress-related illnesses have increased substantially over the last few years. Insurance companies have seen a substantial increase in the number of disability claims resulting from psychological, psychiatric and mental disorders.
According to a 2016 study conducted by the South African Depression and Anxiety Group (SADAG), 1 in 4 employees has been diagnosed with depression. How are employers dealing with employees diagnosed with depression? If you, as an employee, were diagnosed with a mental illness, would you feel comfortable disclosing your mental health status to your employer? If so, you would be only 1 in 6 employees who would be willing to do so according to a 2017 survey by SADAG.
The recent Labour Court case of Jansen v Legal Aid South Africa  ZALCCT 17 (16 May 2018) concerned the automatically unfair dismissal of a long-standing employee of the Legal Aid Board because of depression.
The employee had been in the employ of the employer since 2007 and by all accounts was a good performer. During 2010, the employee was diagnosed with major depression. The employee disclosed his condition to the employer and accessed the employer’s wellness program. During 2012, the employees’ condition deteriorated due to his personal circumstances which were exacerbated by his supervisor unexpectedly testifying on behalf of his spouse during his divorce proceedings.
The employee had difficulty dealing with the actions of his supervisor and was feeling betrayed and mistrustful. This was brought to the attention of the employer who was advised by a clinical psychologist that the issue needed urgent resolution as it was negatively affecting the employee’s mental state. The employer ignored this advice and the employee’s condition deteriorated, affected further by the employer’s inaction. As a result of his condition, the employee was absent from work for a period of 17 days during August 2013 and, upon his return to work, he informed the employer of his mental state and the difficulties he was experiencing. Again, the employer ignored the issue and instead notified the employee that his leave of absence would be regarded as unpaid leave.
On 7 November 2013, and whilst the employee was on sick leave, the employer attended the employee’s residence and issued him with a disciplinary charge sheet for misconduct, ranging from unauthorised absence, a failure to notify the employer of his absence to insolence and a failure to obey a reasonable instruction.
The employee did not deny his conduct and upon receipt of the charge sheet once again alerted the employer to his mental condition and the severe impact it was having on him. The employer ignored this evidence and persisted with the disciplinary action, convened a disciplinary enquiry and summarily dismissed the employee.
The termination of his employment together with the additional strain of financial loss of income further exacerbated the employee’s mental health and his personal circumstances deteriorated even further.
In dealing with this matter in the judgment, Acting Judge Mthomebeni confirmed that at all relevant times the employee was suffering from a mental condition and that the employer was aware of his condition. The Judge confirmed that the employer was aware that the employee had a mental illness and was therefore under a duty to reasonably accommodate the employee. The Court found that the employer failed to take into account the mental state of the employee at the time that he perpetrated the misconduct.
The Judge reasoned that the employee was treated unfairly because of his mental condition and therefore on the facts of this particular matter an automatically unfair dismissal had been established. Interestingly, the employer chose not to lead any evidence. The Court awarded the employee reinstatement with retrospective effect. In addition, and having due regard to the suffering incurred by the employee both during his employment and subsequent to the termination thereof, occasioned primarily in the Court’s view by the employer’s continuous disregarding of the employee’s condition, the Court further awarded the employee a further 6 (six) months compensation as a “solatium” to assuage the hurt and indignity caused by the employer’s actions.
In assessing the merits of this matter, the Court ruled that the employee’s depression did not amount to a disability. In coming to this conclusion, the Judge had regard to the definition of disability as set out in Section 1 of the Employment Equity Act 55 of 1998, as amended.
The EEA defines a disability as a:-
“…long term or recurring physical or mental impairment which substantially limits their entry into, or advancement in Employment”.
Whilst in this case the Judge found that the employees’ depression did not amount to a disability, in certain circumstances depression (and other psychological, psychiatric and mental disorders) may amount to a disability especially if the condition falls within the definition of what constitutes a disability as defined in the EEA and as stipulated in the Code of Good Practice on the employment of persons with disabilities. The Code provides excellent guidance to both employers and employees in this respect.
Employers should recognise that there are different types of depression on a wide spectrum. The South African College of Applied Psychology recognises 6 different types of depression ranging from clinical depression to psychotic depression. Where the form of depression falls within the definition of a disability, it should be recognised as such.
According to the World Health Organisation (“WHO”), depression is the leading cause of ill-health and disability in the workplace. SADAG’s research indicates that employees are taking more than 18 days off work due to depression but are reluctant to disclose depression as a reason for sick leave due to the stigma associated with the condition. Such absenteeism has a direct financial impact on an employer. However, for those employees who are reluctant to disclose their condition, this can also result in a loss of productivity for employers, incurred because of employees who report for duty but are unable to perform (presentism).
Employers should also be mindful of the stigma associated with mental illness, including depression and in many instances, employees are reluctant to disclose their condition. Considering the prevalence of depression and the direct negative impact it has on the workplace, employers are encouraged to create a culture of openness and understanding that fosters a safe space for disclosure where employees are reassured that they will not suffer negative consequences but instead will be supported and assisted.
Employers must play an active role to create this environment. According to the South African Depression and Anxiety Group (“SADAG”), employers can assist by:
- Educating employees on depression and especially how cognitive symptoms can affect work performance;
- Raising awareness of any existing employee wellness assistance programmes AND emphasise that they can help with mental health problems, like depression, by providing access to medical facilities;
- Promoting a culture of acceptance around depression and other psychiatric disorders – they are no different to diabetes or asthma;
- If an employee shares their struggle with depression, referring them to a mental health care professional and reassuring them the illness can be treated; and
- Exploring creative ways to support an employee’s recovery, like flexible/adjusted working hours.
Understanding that wellness is not only about physical conditions, but also mental conditions, is fundamental in any workplace and employers should consider having innovative policies and processes in place in how they will address such conditions and as to how they should adopt a holistic approach. Employers should introduce wellness initiatives and take proactive steps to identify employees at risk and to encourage employees to personally take charge of their wellness.
The South African Human Rights Commission has developed an excellent resource on disability which is useful in understanding what constitutes a disability and how to manage disabilities in the workplace.