DEPRESSION AND MISCONDUCT! IS THERE A LINK?

A number of years ago, representing a MISA member in a Disciplinary Hearing, I was again reminded of the stigma attached to depression. In that specific scenario a Manager, out of fear for the stigma, told his Managers that he was diagnosed with cancer and not depression. Together with that, each chemo session was in fact a Psychiatry session and he had the empathy of everyone. Unfortunately, it was inevitable for the lie to be exposed and at the end resulted in dismissal and pure disdain from his peers.

In a study conducted by the South African Depression and Anxiety Group (SADAG), one out of every four employees had been diagnosed with depression at some stage of their lives. That is 25% of the labour force! Taking it one step further, out of the 25%, just over 4% disclosed their diagnosis to their Employer. Shocking! 

Why? Is it due to the stigma attached to this illness, fear of rejection/victimization, a tiredness so deep that talking about it is just too much?

Misconduct and Depression

The Labour Appeal Court, in a recent judgment, Legal Aid South Africa v Jansen [2020] JOL, 47984 (LAC), was faced with the question whether the dismissal of Jansen was automatically unfair on account of his depression.

Legal Aid SA (LASA) employed Jansen in 2007 as a paralegal. In 2010 Jansen was diagnosed with major depression. In 2012 Jansen’s ex-wife launched domestic violence proceedings against Jansen and was represented by Jansen’s direct Manager, Terblanche. An incident later determined to be an aggravating factor leading to more severe depression. Jansen’s clinical psychologist informed the employer of Jansen’s aggravated depression, as a result of feelings of betrayal by Terblanche and, indirectly, his employer. The Employer was further advised to address and assist Jansen, but failed to do so.

Jansen, as a result of severe depression, working conditions not improving and failure by the employer to act, was excessively absent from work. The employer did not assist Jansen at all and informed him that his absence will be recorded as unpaid leave. In November 2013 Jansen, whilst on sick leave, was issued with a disciplinary charge sheet ranging from unauthorised absence (17 days), failure to notify the employer of his absence to insolence and failure to obey a reasonable instruction.  Jansen did not dispute his actions and his defence was that he was “acting out of character” as a result of his depression and the failure of the employer to address the grievance against Terblanche did not help. The Chairperson refused to admit the Phycologist’s report into evidence and Jansen was dismissed.

The Dispute all the way to the Labour Appeal Court

Jansen referred an automatically unfair dismissal to the CCMA, submitting that his dismissal was automatically unfair as he was dismissed as a result of his mental illness. The matter proceeded to the Labour Court where LASA closed their case without leading evidence. Jansen was retrospectively reinstated and awarded six month’s compensation. LASA took the judgment on appeal and the Labour Appeal Court (LAC) had a different view.

The LAC accepted that depression in the workplace is not exceptional and that the specific circumstances in each case will determine how employers must deal with it. Interestingly enough the LAC confirmed that depression is a form of ill-health which may incapacitate an employee. The Code of Good Practice, Schedule 8 and specifically items 10 and 11 should be followed. The determining factors will be whether the dismissal was substantively and procedurally fair or unfair. Should an employee however have misbehaved and commits misconduct as a result of depression, it should be taken into consideration when evaluating the sanction.

Jansen, however, referred an automatically unfair dismissal where the sole question is ‘whether the employee was subjected to differential treatment as a result of his condition.’ For this reason, the LAC found against Jansen and his dismissal was upheld as fair.

Employer Responsibilities Highlighted

The LAC, Mthomebeni AJ, in balancing the evidence presented frowned on the failure of the employer to act by stating the following:

1. (Paragraph 30) ‘’…During the course of his disciplinary enquiry the applicant submitted proof of his mental condition which the respondent declined to consider, without challenging its authenticity’’. (Own Emphasis) This highlights the responsibility of employers to consider evidence led during a disciplinary hearing in defence that is relating to an employee’s mental health and or illness if presented with such. (Own Emphasis).
2. (Paragraph 40) “…The applicant at all material times suffered from reactive depression, a mental condition, which was triggered by stress in the workplace, particularly the incident concerning Terblanche when he represented the applicant’s estranged wife at court’’. (Own Emphasis) Both the Applicant and a Clinical Psychologist brought the severe depression of Jansen under the employer’s attention. 
3. (Paragraph 43) “… In my view, it follows that the respondent had knowledge that the applicant was a person with a disability. For this reason, the respondent was under a duty to reasonably accommodate him.  The respondent failed to comply with its duty in this regard.  Instead of dismissing the applicant for misconduct, the respondent had a duty to institute an incapacity enquiry.  Considering that the respondent had been made aware of the applicant’s condition, the respondent, in deciding to dismiss the applicant, did not have any regards to the circumstances under which the infractions happened and the effect of the applicant’s condition upon his conduct’’. (Own Emphasis) A very strong message to employers.

Conclusion

Being diagnosed with depression should not be the end of the line. There is a dual responsibility on you as well as your employer in this regard. Firstly, you need to disclose if depression impacts your conduct and performance at work. Secondly, the employer has a duty to listen and to assist. Having said that, depression will not be a blanket defence! Both you and your employer have a duty of good faith to each other. Should depression hamper you from performing your contractual duties, the employer has a right to follow either disciplinary action, when it relates to conduct, or an incapacity process, when it relates to performance.

In essence, disclose depression when it impacts your employment and seek professional help to assist you in coping and in performing your contractual duties. You do have recourse when you are subjected to different treatment or unfairly dismissed as a result of depression.

MISA – Just a phone call or email away!

Kindly utilise the following e-mail addresses and links for assistance during this time:

Employer UIF/TERS Submissions                  UIFClaim@ms.org.za

Legal/Labour-related enquiries                    Legal@ms.org.za

*  Legal Reception                                           0114763920

MISA Benefit claim-related enquiries          Claims@misa.org.za

Any other enquiries                                        Info@ms.org.za

Website                                                            www.misa.org.za

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