Estimated reading time: 6 minutes
Mental health dismissal in South Africa requires careful handling. When an employee’s mental health condition affects attendance, performance or workplace conduct, employers should not rush into disciplinary action without first considering the correct legal process.
South African labour law does not prevent employers from managing misconduct, poor performance or incapacity. However, employers must act fairly, investigate properly and consider the employee’s circumstances before deciding whether dismissal is appropriate.
Mental health-related workplace matters are often complex. What appears to be misconduct may be linked to illness. What appears to be poor performance may require support, medical information or reasonable accommodation. In other cases, an employee may still be held accountable for misconduct if there is no proper link between the condition and the conduct.
For guidance on managing workplace discipline, incapacity and dismissal risk, employers can consult SEESA Labour Law Services.
Why employers need to be careful
Before dismissing an employee where mental health may be a factor, employers should ask:
- Is this matter misconduct, poor performance or incapacity?
- Has the employee disclosed a mental health condition or provided medical information?
- Is there a possible link between the condition and the employee’s conduct, absence or performance?
- Has the employer investigated the matter properly?
- Were reasonable alternatives to dismissal considered?
- Was the process properly documented?
The correct process depends on the facts. A disciplinary process may be appropriate where the employee knowingly broke a workplace rule. An incapacity process may be required where the employee is unable to perform their duties due to illness. A performance process may be needed where the issue relates to work standards or capability.
The 2025 Code of Good Practice: Dismissal provides important guidance on fair dismissal principles, including the need for a fair reason and a fair procedure.
The risk for employers lies in choosing the wrong process too quickly.
Case 1: Legal Aid South Africa v Jansen
The Legal Aid South Africa v Jansen matter is one of the most important South African labour law cases dealing with depression and dismissal.
The employee had been diagnosed with depression and the employer was aware of his condition. He was later dismissed following allegations of misconduct. The employee argued that his dismissal was automatically unfair because it was connected to his depression.
The Labour Court initially found in favour of the employee. However, the Labour Appeal Court later overturned that decision. The Labour Appeal Court found that the employee had not proved that the dominant reason for his dismissal was his depression rather than misconduct.
This case confirms two important points for employers.
First, depression and other mental health conditions must be taken seriously. Employers should investigate properly, consider the employee’s circumstances and assess whether support or reasonable accommodation is appropriate.
Second, a mental health condition does not automatically excuse misconduct. There must be evidence showing a proper link between the condition and the conduct. Webber Wentzel’s commentary on the case also highlights that employers should exercise caution when considering disciplinary action involving employees with mental health issues and should carefully assess whether there is a causal link between the illness and the conduct. Read more here: depression and misconduct in the workplace.
Case 2: IMATU obo Strydom v Witzenberg Municipality
The IMATU obo Strydom v Witzenberg Municipality matter dealt with incapacity linked to mental ill health. The employee had been absent from work for an extended period and submitted medical certificates indicating that he suffered from major depression. The employer eventually dismissed him after an incapacity enquiry.
The case highlights the importance of properly assessing whether continued employment is possible where an employee is unable to work due to illness.
In incapacity matters, employers should consider the nature and extent of the illness, the likely period of absence, the employee’s ability to perform work, available medical information and possible alternatives to dismissal.
The practical lesson is that incapacity dismissal should not be treated as a quick administrative step. It requires consultation, evidence and genuine consideration of alternatives before dismissal is considered.
Misconduct, poor performance or incapacity?
One common mistake employers make is treating every workplace problem as misconduct.
Misconduct usually involves blameworthy behaviour, such as breaking a known rule or refusing to follow a lawful instruction. Poor performance relates to an employee not meeting required work standards. Incapacity applies where the employee cannot perform their duties due to illness, injury or another incapacity-related reason.
Mental health may affect any of these areas. For example:
- repeated absence may require an incapacity assessment;
- declining work performance may require performance management and support;
- erratic conduct may require investigation into whether illness played a role;
- serious misconduct may still require disciplinary action, but mental health may be relevant to mitigation or sanction.
Employers should avoid assumptions. They should gather facts, consult with the employee, consider medical information where appropriate and follow the process that matches the facts.
What employers should do before taking action
Before taking disciplinary or incapacity action involving mental health concerns, employers should:
- investigate the facts;
- consider available medical information;
- consult with the employee;
- consider reasonable accommodation where appropriate;
- choose the correct legal process;
- keep proper records;
- get labour law advice before making a final decision.
Mental health-related dismissals can result in serious legal consequences if handled incorrectly. Proper guidance helps employers reduce risk and make fair, informed decisions. For broader support on employment documentation, disciplinary codes, hearings, labour disputes and representation, visit SEESA Labour Law Services.
How SEESA can assist employers
Mental health, incapacity and disciplinary matters require careful decision-making. A rushed or incorrect process may expose a business to unfair dismissal disputes, compensation awards, reinstatement orders and unnecessary CCMA risk.
SEESA assists employers with practical labour law guidance, including:
- incapacity and ill-health processes;
- disciplinary procedures;
- poor performance management;
- workplace policies and employment documentation;
- CCMA preparation and representation;
- proactive risk management before disputes escalate.
Employers who need support with a workplace matter can contact SEESA for guidance.
Conclusion
Mental health dismissal in South Africa is not always a simple disciplinary matter. Employers must identify the real issue, follow the correct process and consider all relevant facts before deciding whether dismissal is fair.
The Jansen and Strydom cases show that employers should take mental health seriously, investigate properly and consider reasonable alternatives where appropriate. They also confirm that each matter must be decided on its own facts.
Before dismissing an employee where mental health may be involved, employers should seek proper labour law guidance. SEESA helps employers manage complex workplace matters with confidence, compliance and care.
For more guidance on this topic, read SEESA’s article on understanding mental disorders of personnel in the workplace.
Contact SEESA today: https://www.seesa.co.za/contact/
Erica Wessels
Prepare your business. Request a labour law risk assessment today. SEESA’s labour law consultants are ready to assist.