The global outbreak of the Coronavirus (COVID-19) and the resultant national lockdown in South Africa has had a profound impact on many employees, in varying degrees. During the early stages of the lockdown (Alert level 5) some employees had to work from home, and those whose jobs could not be executed from home were forced to stay at home and not work, whereas others have continued to work as normal during the lockdown (the essential employees). As the lockdown is slowly being lifted and is currently at Alert level 3, many employees have returned to workplaces across the country. Although a sense of normalcy may be returning, it is undeniable that COVID-19 and the lockdown may have taken a toll on employees' mental health.
According to the Director-General of the World Health Organisation (“WHO”), “the impact of the pandemic on people's mental health is already extremely concerning”. People's mental health conditions are compounded by “social isolation, fear of contagion, and loss of family members” and the “distress caused by loss of income and often employment.” According to the WHO, depression is a common mental disorder that affects more than 264 million people world-wide. The WHO has also stated that “depression is a leading cause of disability around the world and contributes greatly to the global burden of disease. The effects of depression can be long-lasting or recurrent and can dramatically affect a person's ability to function and live a rewarding life”. The WHO reports indicate that, since the start of the pandemic, there has been an increase in symptoms of depression and anxiety.
In a recent study conducted by the University of Johannesburg's Centre for Social Change and the Developmental, Capable and Ethical State Research Division of the Human Sciences Research Council, it was found that the most common emotions experienced during the lockdown amongst the participants were stress (57%), boredom (45%), fear (43%), frustration/irritability (34%) and depression (32%). The Director of the South African Depression and Anxiety Group (“SADAG”) has stated that, prior to the lockdown, SADAG received about 600 calls per day. However, after the onset of the lockdown it received up to 1400 calls per day from people seeking help. SADAG also conducted its own online survey on mental health during the lockdown and found, amongst other things, that 55% of the participants experienced anxiety and panic, 46% experienced financial stress and pressure and 40% experienced depression.
In light of the above survey findings, it is important for employer's to be aware of their responsibilities when faced with employees who suffer with mental illness These cases largely provide guidance to employers in respect of measures that should be taken when dealing with employees whose mental health may have been adversely impacted by COVID-19 and the lockdown.
Mental health and disability
The Code of Good Practice on Employment of Persons with Disabilities (“Code”), published in terms of the Employment Equity Act,1998 (“EEA”), provides that a person is considered as having disabilities if they have a long-term or recurring physical or mental impairment that substantially limits their prospects of entry into, or advancement in, employment. Mental impairment is defined as a clinically recognised condition or illness that affects a person's thought process, judgement or emotions.
In terms of the EEA, no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more listed grounds, including disability. In addition, the Labour Relations Act,1995 (“LRA”) provides that a dismissal is automatically unfair if the reason for the dismissal is an employee's disability.
Duty of the employer
Employers are enjoined, by the Code, to reasonably accommodate the needs of persons with disabilities to reduce the impact of the impairment of the person's capacity to fulfil the essential functions of a job.
Schedule 8 of the LRA, the Code of Good Practice: Dismissal provides that incapacity either caused by ill health or injury may be temporary or permanent. If an employee is temporarily unable to work, the employer should investigate the extent of the incapacity. If the employee is likely to be absent for an unreasonably long period of time in the circumstances, the employer should investigate all possible alternatives short of dismissal. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability.
The common theme from the Code and Schedule 8 is the duty on the employer to reasonably accommodate an employee who suffers from some sort of impairment.
Labour Court rulings | some practical examples
In Jansen v Legal Aid of South Africa, the employee was dismissed for misconduct, but the employee alleged that he had been dismissed because of his mental illness. His dismissal was therefore automatically unfair in terms of the LRA and also amounted to unfair discrimination in terms of the EEA.
The employee had been diagnosed with reactive depression, a mental condition that was triggered by stress in the workplace. The employer had been aware that the employee was suffering from the illness. The Labour Court (“LC”) held that the employer was under a duty to reasonably accommodate the employee and the employer had failed to do so.
The LC held that, instead of dismissing the employee for misconduct, the employer had had a duty institute an incapacity enquiry. The employer's conduct in ignoring the employee's condition and dismissing him had the potential of impairing his fundamental human dignity.
In another LC case dealing with mental health in the workplace, Rapoo v Rustenburg Local Municipality, the employee claimed that he had been discriminated against on the grounds of his disability, namely depression, in terms of the EEA. He claimed the payment of compensation as well as damages against the municipality.
The employee was diagnosed with mental illness and the municipality was informed of his condition in November 2011. The employee was hospitalised in a psychiatric hospital in October/November 2011 and was further placed on seven-weeks' incapacity leave for further psychiatric treatment from June 2012 to July 2012. The employee's psychiatrist prepared two medical reports on his condition. These were presented to the municipality on two occasions. In the reports, the psychiatrist recommended that the employee be removed from his stressful working conditions and be accommodated in a unit where he would not report to another employee with whom he had a history of conflict.
The employee's psychiatrist testified in the LC that the employee's mental illness (Depressive Mood Disorder) was perpetuated by the stress he experienced in his work environment. It was the psychiatrist's view that the employee was likely to recover after treatment and that he be transferred to a different unit for an initial period of six months to enable him to recover. The municipality failed to give effect to these recommendations.
A year later, the employee was charged with four counts of misconduct, namely: gross dereliction of duty, absence without leave, gross insubordination, and a breach of his duty of good faith owed to his employer. The employee was found guilty of the infractions. However, the imposition of a sanction was postponed pending the outcome of an incapacity hearing. The employee resigned from his employment prior to the incapacity hearing and referred an unfair discrimination case to the LC. In dealing with the question of whether the employee was unfairly discriminated against, the LC held that:
- By delaying moving the employee from the stressful environment as recommended, the municipality exacerbated the employee's condition and left him to his own devices to contend with a disability contemplated in the EEA.
- The employee produced medical reports, on several occasions, stating that he was unfit to work. The municipality clearly had a problem with his continued absences. However, the municipality failed to move the employee to a different unit to report to a different manager for at least six months while he continued his therapy. The municipality had failed to comply with the Code, the Constitution of the Republic of South Africa, international and foreign law, as well as best practices.
- The municipality avoided dealing with the employee's mental impairment and persistently ignored his grievances. The approach adopted by the municipality in dealing with the employee's disability, was in itself, a discriminatory practice.
- The municipality should have conducted an incapacity investigation, which it failed to do. It was also required to reasonably accommodate the employee, which it failed to do.
The LC found that the lack of accommodation accorded to the employee amounted to unfair discrimination. When assessing compensation and damages under the EEA, the LC came to the conclusion that the order must not only be appropriate, but just and equitable. In determining what constituted fair and equitable compensation, the LC took numerous factors into account, such as the municipality's attitude and failure to accord reasonable accommodation to the employee, the employee's length of service and the employee's annual income, amongst other things.
The LC came to the conclusion that the amount of ZAR200 000 was just and equitable, although the LC erroneously awarded the compensation on the basis of an automatically unfair dismissal in terms of the LRA. The LC also awarded damages totalling ZAR41 881.06 under the EEA. The municipality was ordered to pay the employee a total amount of ZAR241 881.00.
The Labour Appeal Court (“LAC”) confirmed the LC decision, in particular the factors taken into consideration in determining just and equitable compensation. However, the LAC corrected the error made by the LC in awarding compensation for an automatically unfair dismissal in terms of the LRA. Instead, the LAC affirmed that the LC ordered compensation on account of unfair discrimination as contemplated in the EEA and concluded that the LC exercised its discretion judicially in awarding compensation in the amount of ZAR200 000.
The above cases demonstrate the importance of employers treating cases of mental illness with great caution and taking the steps necessary to reasonably accommodate employees suffering from mental illness. In light of the unprecedented hardships presented by COVID-19 and the lockdown, it would be in the best interests of employers and employees to approach cases of mental illness in the workplace with care, caution and understanding. Employers who fail to reasonably accommodate employees suffering from mental illnesses may suffer the fate of the employers in the above cases.
Originally published by ENSafrica, August 2020
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