Depression in the South African workplace is increasing at an astronomical rate in every sector of the labour market. This trend is not unique to South Africa. Studies in the USA, UK, the EU and elsewhere reveal the same upward trajectory in the number of employees suffering from depression.
While there are no formal studies on this, anecdotal evidence (and common sense) suggests that magistrates and the legal representatives appearing before them have to deal with immensely stressful circumstances, and are therefore likely to be particularly vulnerable to post traumatic stress disorder, depression and even other mental illness. This is likely to be especially so for those who work in the criminal courts.
The case of Ockert Jansen v Legal Aid South Africa (case no c678/14 heard in the Cape Town Labour Court (where judgement was delivered on 16 May 2018) was a case dealing with a dismissal for alleged misconduct including insubordination and absenteeism which was found to be inextricably intertwined with his mental illness of depression. The employer dealt with the matter as an ordinary misconduct dismissal case and was found to have handled the matter incorrectly and in contravention of the Labour Relations Act and the Employment Equity Act.
The applicant employee, who was employed as a paralegal at the Legal Aid Riversdale Satellite Office of Legal Aid South Africa, brought a case alleging automatically unfair dismissal in terms of the Labour Relations Act on the basis that the reason for his dismissal was that the respondent had unfairly discriminated against him on the ground of his mental illness. He also lodged an unfair discrimination claim in terms of the Employment Equity Act. It has been established that an employee may lodge separate claims, seeking separate remedies, in terms of the Labour Relations Act and the Employment Equity Act, on the same facts. In this case the applicant sought reinstatement with back-pay for his alleged automatically unfair dismissal and damages in terms of the Employment Equity Act discrimination claim.
The court ruled that the respondent had a duty to begin and the respondent then closed its case without leading evidence. This was a dubious strategy which did not serve the respondent well since it’s version was never placed before the court and the applicant’s evidence stood unchallenged.
The applicant testified that he had been an excellent worker who had received performance awards from his employer and who had been appointed as the vice-chairperson of the Small Claims Board. However, around about 2010 things started to change.
During the course of 2010 the applicant visited his doctor for a physical problem but also mentioned other symptoms which the doctor diagnosed as symptoms of major depression. He was referred to hospital and prescribed anti-depressants. The relevant medical certificate detailing all this was furnished to the respondent employer.
The applicant requested to be put on respondent’s wellness programme, which was done. This simply entailed that the applicant consulted with a social worker from FAMSA.
In 2011 the applicant consulted another doctor who confirmed the diagnosis of depression and also found that he was presenting with high anxiety levels. He submitted the necessary doctors’ certificate to this employer.
In August 2012, the applicant confided in his employer and mentioned his personal and work problems that had resulted in him being treated for depression.
In September 2012 the applicant attended at the Divorce Court because he had separated from his wife. He found that his manager (and a Justice Centre executive) was appearing for his estranged wife. This blindsided the applicant who had not been forewarned that his manager would be appearing for his wife against him. His depression and anxiety levels were heightened by this occurrence and he felt betrayed by his employer.
At about this time, the respondent arranged for the applicant to consult a clinical psychologist who issued a report detailing the applicant’s problems and recommending that the issues at work needed resolution as soon as possible. The report was given to the respondent. The applicant tried to meet with the respondent to make an attempt at resolving the workplace stressors but to no avail.
The applicant continued to address emails to the respondent advising of his condition and his continuing need to see a psychologist. He told the respondent that he believed management’s behavior was causing and worsening his depression and anxiety. No response from the respondent was forthcoming.
By this stage the applicant’s emotional and mental condition had deteriorated to such a degree that he would, as a coping mechanism, disengage from everything and lock himself up in his room for days.
Other work related problems arose, including grievances relating to overtime payment and maintenance order payment delays, which further aggravated the applicant’s mental condition.
The applicant then absented himself from work for 17 days. He told his employer that it was because he could no longer cope as a result of his mental state. His employer’s only response was to say that the 17 days would be treated as unpaid leave.
The applicant’s condition deteriorated further resulting in him staying away from work from 11-18 October 2013. During this period the applicant consulted another doctor who diagnosed him with manic depression.
On 14 November 2013 the applicant’s manager presented him with a notice to attend a disciplinary enquiry and a charge sheet. The charges against the applicant were unauthorized absence from duty for a total of 17 working days, and failing to inform his manager thereof in accordance with procedure, gross insolence and refusal to obey a lawful and reasonable instruction.
The applicant gave his manager a document explaining the symptoms of his depression and related conditions which the manager read and then simply asked the applicant to sign the notice of the disciplinary enquiry.
At this stage the applicant’s condition had worsened to such an extent that he had effectively lost control of himself and was acting erratically and out of character.
The disciplinary enquiry was held on 20 and 21 November 2013 and the applicant was found guilty on all charges, and ultimately dismissed.
On 28 November 2013 the applicant advised the respondent that he had been absent for some of the days because he had been consulting with the respondent’s resident clinical psychologist. On 4 December 2013 the psychologist forwarded a report concerning the applicant’s psychological state to the employer. It was a detailed report and contained the following paragraph
“I would recommend that Mr Jansen be granted sick leave for a considerable amount of time … His resources for impulse control him seems (sic) limited therefore he needs timeout. This is of great importance. Please take Note.”
The chair of the disciplinary enquiry rejected the applicants’ defense saying there was no medical evidence corroborating that he was suffering from reactive depression. She also commented that she was chairing misconduct proceedings and that it was not an incapacity hearing. She refused to consider the psychologist’s report saying it would be prejudicial to the respondent to re-open the case.
The applicant also submitted the report, and other medical certificates, to the Chief Legal Executive who concluded that
“Having regard to all evidence that was led before your disciplinary hearing in totality, there is no concrete evidence before me to conclude that your alleged ill health has the effect you presented. Accordingly this defence is dismissed.”
The applicant also applied for sick leave as per the respondent’s policy on temporary incapacity but it was refused, even though the applicant still had 18 days from his sick leave cycle to his credit.
The applicant again consulted with a medical practitioner who diagnosed him with major depression and booked him off work from 15 – 31 January 2014.
The Court was satisfied that the applicant at all material times suffered from reactive depression which was triggered by stress in the workplace, particularly the incident when the applicant’s manager represented his estranged wife at court.
The court held that the respondent was aware 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 (see also Standard Bank of South Africa v CCMA  4 BLLR 356 (LC)).
In considering whether the dismissal amounted to an automatically unfair dismissal, the court held that although the applicant’s condition did not fall within the definition of disability in the Employment Equity Act, his depression was nevertheless a mental health problem. The law protected him from being discriminated against on this ground. The court held, referring to New Way Motor and Diesel Engineering (Pty) Ltd v Marsland (2009) 30 ILJ 2875 LAC (at para 24), that the conduct of the respondent in ignoring the applicant’s mental health condition and deciding to dismiss him in the circumstances, when, viewed objectively against the applicant’s depression, had the potential to impair the applicants fundamental human dignity fell within the grounds of s187(1) f of the Labour Relations Act, and thus rendered his dismissal an automatically unfair dismissal.
The court reasoned, referring to SACWU v Afrox Ltd (1999) 20 ILJ 1718 LAC (at para 32) and Kroukam v South African Airlink (Pty) Ltd  12 BLLR 1172 LAC (at para 27), that the applicant would not have been dismissed had the applicant not suffered from his medical condition. The misconduct he was charged with was inextricably linked to his mental condition. In other words, the court concluded, the most probable reason for the applicant’s dismissal was his mental condition. Thus it was an automatically unfair dismissal.
The court then turned to the unfair discrimination claim and, flowing from its earlier reasoning, quickly concluded that the applicant had been unfairly discriminated against on the prohibited ground of his mental condition.
He was reinstated with full retrospective back-pay, to satisfy the unfair dismissal claim. In respect of the unfair discrimination claim, the court declined to order damages for patrimonial loss because of the order granted in the unfair dismissal case but ordered him 6 months compensation as a solatium for the distress suffered by the applicant on account of the discrimination, which, the court held would also act as a deterrent to other employers. The respondent was ordered to pay the applicant’s costs on a party and party scale, including costs of counsel.
 Lesley Burns ‘Incapacity matters- Depression in the Workplace’ available at http://www-b-h.co.za/downloads/depression_article.pdf. See also Meryl du Plessis ‘Mental Stress Claims in South African Workers’ Compensation (2009) 30 ILJ 1476-1480
 Yuiko Fujimori, Takashi Muto, Keiko Suzuki ‘Characteristics of an external employee assistance program in Japan (2004) 54 Occupational Medicine Journal 570. See also Gaston Harnois and Phyllis Gabriel ‘Mental Health and Work Impact, Issues and Good Practice’ Geneva World Health Organisation (2000) at 32 available at http://www.who.int/mental_health/media/ed/712.pdf; Phyllis Gabriel and Marjo-Riita Liimatainen ‘Mental Health in the Workplace: Introduction’ International Labour Office, Geneva October 2000 available at http://ilo.org/global/About_the_ILO_/media_and_public_information/press_release/lang–en/WCMS_007910/index.htm
 R Kaplan ‘Guidelines to the management of disability claims on psychiatric grounds: issued by the South African Society of Psychiatry (1996) 86 South African Medical Journal 646
 Elif Kaban ‘Gloom and Doom at work on the rise – survey. Reuters Internet Supplement 10 October 2000 available at http://www.iol.co.za/index.php?set_id=1&click_id=31&art_id=qw971155381875M534