8 September 2023
Disciplinary proceedings play a vital role in upholding discipline and fairness within organisations across South Africa. Nevertheless, when it concerns individuals with mental disabilities or mental illness, additional considerations and procedures are essential to ensure a just and equitable disciplinary process. In employment, a complex situation can arise where mental illness intersects with disciplinary action.
Navigating Mental Health and Disciplinary Action
Employers must tread carefully in such cases, as mishandling them can lead to significant risks and legal liabilities. So, what happens when mental illness becomes a factor in disciplinary action? For instance, an employee's misconduct might stem from a mental health issue or disability. In such scenarios, should the employer treat it as an incapacity issue by initiating an incapacity investigation, or should a standard disciplinary hearing be convened?
The Labour Relations Act distinguishes between misconduct and incapacity. In a previous article, we detailed this distinction (read more: [link]). When an employee's inability arises from ill health, including mental health or mental disability issues, the employer must engage in an incapacity investigation process that involves consultation and a reasonable effort to accommodate the employee. Conversely, in misconduct cases, the employer may take disciplinary action through a typical disciplinary hearing.
The Impact of Mental health Issues in the Workplace
Mental health or mental disability issues can impact the workplace in various ways, such as reduced morale, decreased efficiency, absenteeism, or even workplace accidents. According to a 2014 study by the World Health Organization, depression was predicted to significantly contribute to the global health burden by 2020.
Mental health issues often manifest in the workplace through poor employee performance, leading employers to respond with performance improvement programs (PIPs). These programs entail setting clear performance standards and monitoring an employee's progress towards meeting them.
However, challenges arise when mental health issues manifest as other forms of misconduct, such as gross insolence, emotional outbursts, insubordination, or irrational behaviour. Identifying such problems can be particularly challenging, especially when emotions are running high, and the trust between employer and employee has eroded.
Legal Complexities Surrounding Mental Health Classification in the Workplace
Unfortunately, mental health issues are sometimes erroneously categorised as "ill health" (incapacity) rather than a disability. This misclassification can leave employees with mental health issues without legal protections.
Neither the Labour Relations Act nor the Employment Equity Act defines what qualifies as a 'disability' within the employment law context, leading to contradictory decisions in the Labour Court. For example, in one case, the court classified an employee's mental illness as an issue of incapacity due to ill health, while in another case, it was considered a disability.
Case Study - Standard Bank of SA v Commission for Conciliation
In the case of L S v Commission for Conciliation, Mediation and Arbitration & Others (2014), the court emphasised proper investigations when dealing with underperforming employees who may suffer from depression. This underscores the importance of appointing experienced disciplinary chairpersons who are well-versed in labour law and can accurately categorise issues, ensuring that correct procedures and tests are followed during incapacity investigations.
The Labour Court, in Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration & Others (2008), outlined guidelines for employers dealing with employees with 'disabilities.' Employers should:
A. Assess the employee's ability to perform their duties.
B. Explore whether adjustments to working conditions can accommodate the employee's disabilities.
C. If adjustment isn't feasible, seek other suitable employment within the organisation.
This suggests that employers may have a statutory duty to assist employees suspected of suffering from mental health issues.
Crucial Points to Consider
From case law and legislative provisions, several key points are evident:
• Employees with mental health issues should receive as much support as reasonably practicable, including investigations to identify measures that can assist them or adaptations to the work environment.
• Employers must determine whether the illness is temporary or permanent and explore alternatives to dismissal.
• Regardless of employment duration, employees should always be able to state their case.
• If no alternatives exist except dismissal, it should be based on incapacity. To guard against unfair dismissal and discrimination claims, employers must provide solid evidence that all viable options were considered.
The consequences of failing to follow the correct procedure in dismissal cases have been highlighted in legal precedents, underscoring the need for a careful and compassionate approach when addressing disciplinary proceedings involving individuals with mental disabilities and mental illness in South Africa.
By adhering to proper procedures, accommodating reasonable requests, and offering support, organisations can ensure fair and just outcomes, fostering inclusivity and protecting the rights and dignity of all individuals affected by mental illnesses or disabilities in the workplace.
If you would like to learn more about walking the tightrope between mental health issues and disciplinary action, please don’t hesitate to contact our legal team. Contact our Call Centre on 0861 737 263
