Misconduct relating to depression – what constitutes unfair dismissal?

In a matter of Legal Aid South Africa v Jansen, the Labour Appeal Court had to decide whether the Employer’s decision to dismiss Mr Jansen, who was struggling with depression and continued being absent from work a result thereof, was fair. Mr Jansen argued that his behaviour was a result of his deteriorated mental health.  

Mr Jansen commenced his employment with Legal Aid South Africa during 2007. In 2010 he was diagnosed and treated for depression. Over the following years,  Mr Jansen was absent from work on numerous occasions, which he attributed to his depression.  Mr Jansen would take unauthorised leave and eventually he received a final written warning for it.  

As his condition deteriorated, he continued to be absent from work without following his employer’s leave policy. He was eventually charged with being absent for 17 days, breaching his employer’s policy, showing insolence towards a superior, and insubordination by refusing to fulfil his duties. Mr Jansen pleaded guilty to the offences. However, he justified his actions on the basis of his deteriorated mental health. Legal Aid South Africa, however, proceeded to dismiss him. 

Mr Jansen proceeded to challenge the fairness of the dismissal on two grounds. Firstly, he argued that it was unfair in that he was discriminated against on the grounds of disability (in terms of section 187(1)(f) of the Labour Relations Act,66 of 1995) and argued it to be an unfair discrimination case in terms of the Employment Equity Act, 55 of 1998.  

The Labour Court (LC) found that Mr Jansen had proven a prima facie case and held that he was unfairly discriminated against after hearing the evidence of his clinical psychologist, who testified and explained his mental condition. 

Legal Aid South Africa appealed the decision to the Labour Appeal Court (LAC). The LAC took into consideration that even though Mr Jansen had admitted to the transgressions, he, nevertheless, maintained that his behaviour was a direct result of the depression. The depression, he argued, obscured his ability to conduct himself in such a manner where he could appreciate the wrongfulness of his behaviour, which consequently effected his self-control.   

The LAC confirmed that incapacitating depression is a form of illness that places a duty on the employer to implement the procedures set out in items 10 and 11 of the Code of Good Practice. 

The LAC held that dismissal for reasons of misconduct would be inappropriate and substantively unfair in the event that it is established that an employee who, on account of their depression, their state of mind (cognitive ability), as well as their will (conative ability), has been impacted to the extent that they are unable to appreciate the wrongfulness of their actions. Instead, the employer ought to approach the issue in terms of incapacity or an operational requirements perspective. Conversely, it can also be a mitigating factor if an employee’s depression does not impede on their cognitive and conative abilities. Their depression may, nevertheless, diminish their culpability. According to the LAC, the onus lies with an employee to prove the claim that their depression impacted their conative ability. 

Regarding the automatic unfair dismissal claim, the LAC held that, 

“for an employee to succeed in an automatically unfair dismissal claim based on depression, the question is different. Here the inquiry is not confined to whether the employee was depressed and if his depression impacted on [sic] his cognitive and conative capacity or diminished his blameworthiness. Rather, it is directed at a narrower determination of whether the reason for his dismissal was his depression and if he was subjected to differential treatment on that basis. Here too, the employee bears the evidentiary burden to establish a credible possibility (approaching a probability) that the reason for dismissal was differential treatment on account of his being depressed, and not because he misconducted himself.” 

Even though Mr Jansen suffered from depression, he had failed to construct a plausible case to prove that his acts of misconduct were caused by his state of depression. The clinical psychologist who treated Mr Jansen could also not place any evidence before the court that his depression caused the acts of misconduct. Accordingly, The LAC upheld the appeal, and the decision of the LC was set aside and substituted with an order dismissing the application. 

Therefore, based on the approach of the LAC, if it is established that an employee who, on account of their depression, their state of mind (cognitive ability), as well as their will (conative ability), has been impacted to the extent that they are unable to appreciate the wrongfulness of their actions, then dismissal for reasons of misconduct would be inappropriate and substantively unfair. Depression can also serve as a mitigating factor in certain circumstances. The onus, however, to prove the direct link between the illness and the misconduct, is on the employee.  

Reference List:   

  • Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37; (2020) 41 ILJ 2580 (LAC)
  • Labour Relations Act, 66 of 1995
  • Employment Equity Act, 55 of 1998
  • South African Labour Law Reports 2021, 37th Annual Seminar. Author: B van Zyl.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)