Depression for many generations, has been considered a taboo subject. According to the World Health Organisation, the COVID pandemic has caused a 25% increase in depression worldwide and whilst one pandemic has ended, another has begun.
With the prevalence of depression being a common illness in the workplace, the question is whether depression can be raised as a valid defence against misconduct?
In the case of Legal Aid vs Jansen, the labour court of appeal was challenged with the same question. In 2010 the employee was diagnosed with severe depression and received medical treatment. The employee was, after he had been absent for a period of time, charged for misconduct. The employee at the disciplinary hearing did not dispute the merits of the case but raised mental illness as a defence for his actions; however, subsequently it was dismissed. The Labour Court in this matter ruled the dismissal to be automatically unfair, stating that the employer had a duty to institute incapacity proceedings instead of dismissing the employee for misconduct. This matter was then referred to the Labour Court of Appeal, which overturned the Labour Courts’ decision and found the dismissal to be fair. The Labour Court of Appeal asked whether there was legal causation i.e. whether depression was the imminent cause of the employee’s misconduct. To establish this, further questions needed to be asked, i.e. Whether depression impaired the employee’s wilfulness and cognitive ability in that he could not appreciate the wrongfulness of his actions. In this case, Jansen failed to prove that his depression inhibited his wilfulness from acting in accordance or his cognitive ability to appreciate the wrongfulness of his actions. As a result, the same led directly to his misconduct.
In light of the above, it is imperative when dealing with depression as a defence against misconduct that the question of whether an employee lacked willfulness or cognitive ability to act in accordance or appreciate the wrongfulness of his actions is put forward. Further to the above, it must be established whether the impairment of the employee’s cognitive ability and wilfulness resulted from depression and that such depression is the most proximate cause of the misconduct. Therefore, it is clear that depression cannot be used to avoid disciplinary action. Whilst the burden of proof lies with the employee, it does not absolve an employer of his responsibility to assist and accommodate an employee suffering from a mental illness. Therefore, it is important to note that employees must inform their employers of their depression. The employer may establish with reference to the circumstances of each case whether an incapacity hearing or a disciplinary enquiry should be convened. Given the complexity of this issue, each case needs to be treated individually and with utmost care.
Should you require further information regarding disciplinary processes or dismissals, contact your nearest SEESA Labour Legal advisor. Alternatively, leave your contact details on our website and a SEESA representative will contact you.
About the Author:
Shemariah Johnson started her career at SEESA in 2021 and is currently a Labour and BEE legal advisor at SEESA’s Richards Bay office. She was admitted as an attorney of the High Court of South Africa in 2020. Shemariah attained her LLB from the University of the Free- State.
Resources:
- Jansen v Legal Aid South Africa (C678/14) 2018
- Legal Aid South Africa v Jansen (CA3/2019) Labour Appeal Court
- https://www.who.int/news/item/02-03-2022-covid-19-pandemic-triggers-25-increase-in-prevalence-of-anxiety-and-depression-worldwide