Depression is a prevalent illness in the current environment
By Amien Hoosain
Legal Aid South Africa v Jansen, a decision of the Labour Appeal Court on 21 July 2020, dealt with the dismissal of a paralegal who suffered from depression. The main question was whether the dismissal of Mr Jansen was automatically unfair, as Jansen averred that Legal Aid had unfairly discriminated against him on the arbitrary ground of disability (section 187(1)(f) of the Labour Relations Act deems such a reason for a dismissal to be an automatically unfair dismissal). Unless both parties agree to the determination of such a dispute through arbitration in the CCMA, the Labour Court has exclusive jurisdiction over unresolved unfair discrimination disputes.
Jansen had worked for Legal Aid for three years before being diagnosed, in 2010, with depression, in respect of which he was prescribed medication. His condition steadily worsened, and in 2011 he voluntarily submitted to counselling.
Jansen was divorced in 2012. Soon thereafter, his ex-wife launched domestic violence proceedings against him, and a senior attorney also employed by Legal Aid represented the ex-wife. Jansen believed that the attorney had a conflict of interest and had acted improperly, and therefore lodged a grievance against him. It later transpired that this grievance worsened the depression. Legal Aid did not take action against the attorney (probably correctly so).
In 2013, Jansen continued to struggle with depression and anxiety, which he disclosed to Legal Aid, yet for several months his performance was satisfactory, but then his regular absenteeism (with no medical certificate) became a problem. And in October there was both an incident of insolence by Jansen towards the attorney against whom he had the grievance, and an incident of him refusing to obey a lawful and reasonable instruction.
Legal Aid instituted disciplinary proceedings against Jansen in November 2013, and charged him with four counts: (1) unauthorised absence from work for 17 days; (2) transgression of policy by failing to inform his manager of his absence from work; (3) the insolence incident; and (4) the refusal to obey a lawful and reasonable instruction incident. Jansen essentially admitted that he was guilty of the charges, but relied on his depression as a defence. In December, Legal Aid dismissed Jansen.
Jansen regarded his dismissal as automatically unfair, and commenced proceedings in the Labour Court. He won. Legal Aid then appealed to the Labour Appeal Court.
The Labour Appeal Court stated that depression of an employee is of significance. Employers have a duty to deal with it sympathetically, and should investigate it fully and consider reasonable accommodation and alternatives short of dismissal. In addition, where depression may account in part for an employee’s misconduct, depending on the circumstances and the nature of the misconduct, dismissal may not be appropriate.
The Labour Appeal Court stated the test for a finding of unfair dismissal as follows:
“Here the enquiry is not confined to whether the employee was depressed and if his depression impacted on 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.”
On the facts, the Labour Appeal Court accepted that Jansen had suffered from depression since 2011, but found that he was not wholly incapacitated, and had not adduced cogent evidence, medical or otherwise, showing that (1) his acts of misconduct were caused by his depression or (2) that he was dismissed for being depressed. And he failed to prove that Legal Aid had treated him in any way different from the treatment accorded to other employees.
The Labour Appeal Court upheld the appeal, and Jansen lost:
“[Legal Aid] had a legitimate basis for imposing discipline, [Jansen’s] depression notwithstanding. That being the case, the proximate reason for disciplining [Jansen] was his misconduct and not the fact that he was depressed. He was relatively capable and knowingly conducted himself in contravention of the rules of the workplace. Discipline was justifiably called for.”
This case was a close call. Had Jansen’s pleadings (and expert evidence) in the Labour Court been more focussed on the specific requirements for proving an automatically unfair dismissal, the result could have been different.
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