2 March 2020 by Employment Alert

OHSA – yes, this includes mental health – what does the law say?

Our Occupational Health and Safety (OHS) legislation places a duty on every employer to maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees. Indeed, the recently introduced SANS 45001 standard dealing with Occupational Health and Safety management in South Africa, which was introduced in August 2018, specifically acknowledges that an organisation’s duty on workplace safety includes the promotion and protection of both its workers’ physical and mental health

Employees suffering from mental health issues either directly or indirectly affect the workplace in the form of low morale, workplace inefficiencies or even lost time or workplace accidents. The World Health Organization (WHO) conducted a study in 2014 illustrating that by 2020, depression will be a primary contributor to the global health burden.

Mental health issues often (but not always) make their debut in the workplace in the form of poor or lacklustre performance on the part of the employee. Employers have been taught to respond to poor performance in the manner prescribed in the Schedule 8 of the Code of Good Practice – Dismissal, by embarking on a performance improvement programme (PIP), whereby reasonable standards of performance are clearly communicated and the employee’s progression towards these standards are mentored and monitored.

The lines, however, become obscured where mental health issues manifest in other forms of misconduct such as acts of gross insolence, emotional or even violent outbursts, gross insubordination or irrational behaviour. These issues are much harder to identify especially in the face of pending misconduct disciplinary action, where emotions are running high and the trust relationship has been impacted.

Mental health issues have predominantly been addressed as an ‘ill health’ (incapacity) issue and not as a disability. The problem with this approach lies in the fact that where mental health in the workplace is treated as an incapacity issue, employees suffering from debilitating mental health issues, are not afforded the necessary protections prescribed under the Labour Relations Act, 1995 (LRA) and the Employment Equity Act, 1998 (EEA).

Neither the LRA, nor the EEA define what is regarded as a ‘disability’ within the employment law context. The question then begs, what passes for a ‘disability’ under our currently legislation and can this be (fairly) treated in the same manner as ‘ill health/incapacity’? Our Labour Court has been divergent on this issue.

While the Labour Appeal Court in Independent Municipal & Allied Trade Unions v Witzenberg Municipality (2012) 33 ILJ 1081 (LAC) categorized the mental illness suffered by the employee as an issue of incapacity due to ill health, the same court in New Way Motors & Diesel Engineering (Pty) Ltd v Marsland (2009) 30 ILJ (LAC) considered it as a disability.

Needless to say, this can be confusing.

In L S v Commission for Conciliation, Mediation and Arbitration & others (2014) 35 ILJ 2205 (LC), the court held that the employer failed to conduct a proper investigation as to why the employee was underperforming. The court held, when someone suffers from a mental illness there might not be a wilful denial in performing, but rather the inability of the employee to perform. Where the employer opted to categorise the issue as that of misconduct instead of incapacity for poor work performance, the court found that this was unfair.

This judgment illustrates the onerous duty placed on employers to conduct proper investigations where they seek to dismiss poor performing employees who may suffer from, inter alia depression. It further highlights the importance of appointing skilled disciplinary chairpersons that are mindful of the finer intricacies of labour law and categorising the issues properly, so as to follow the correct procedures and applying the correct tests, when chairing disciplinary hearings. 

More recently, the court in Jansen v Legal Aid South Africa [2019] JOL 42192 (LC) dealt with the dismissal of an employee who suffers from a mental condition of which the employer was aware. In this case, the employee was dismissed for misconduct in circumstances where his acts of misconduct were inextricably linked to his mental condition.

The labour court found that the employer in this case was under a duty to reasonably accommodate the employee. The court also found that the employer failed to comply with its duty and that as opposed to dismissing the applicant for misconduct, the employer had a duty to institute an incapacity enquiry.

The court found that the dismissal of the employee was automatically unfair in terms of section 187 (1)(f) of the LRA and that the employer unfairly discriminated against the employee in terms of section 6 of the EEA.

The Labour Court in Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration & Others (2008) 29 ILJ 1239 (LC) provided some guidance for employers to follow when dealing with employees who suffer from ‘disabilities’. The employer must consider:

Whether the employee is able to do his work;

  • To what extent the employee is able to perform his duties;
  • Whether they can adapt the employee’s current working conditions to accommodate the employee’s disabilities; and
  • If adaptation is not possible, the employer will have to find other suitable employment within its organisation if possible.

To this extent, employers may be under a statutory duty to render assistance to employees suspected of suffering from mental health issues. This places an additional burden on the employer and further begs the question ‘to what extent must an employer go in order to satisfy its OHS obligations?”

From the case law and the various legislative provisions, the following is clear:

  • When an employer is faced with an employee who is suffering from mental health issues, the employee should be provided with as much support as reasonable possible and practicable. This may include an investigation by the employer to establish measures that may assist the affected employee or to adapt the working environment if this is practicable.
  • Throughout the discussions with the employee, the employer should establish whether the illness is temporary or permanent and if there are any alternatives possible to avoid dismissal.
  • Furthermore, and irrespective of the duration of the employment, the employer should always provide the employee with an opportunity to state a case.
  • Should there be no alternative available short of dismissal, the employee may be dismissed for incapacity. However, in order to ensure that the employee is not successful in an unfair dismissal and/or unfair discrimination matter, the employer should be able to provide solid evidence that all viable alternatives were considered.
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