It cannot be denied that mental health in relation to the workplace is becoming a topic of increasing discussion and debate. The consequences of the Covid-19 pandemic on mental health have been widely recognised and this has perhaps opened the door somewhat for more openness about the issue - and particularly so in the workplace environment.
Although our employees' mental health is important to us in a general sense of caring about their well-being, an employer's intervention is required whenever such issues have an adverse impact on the business and/or other employees. This is where the difficulty lies - because managing scenarios where employees' conduct may be linked to mental health issues, or their performance suffers because of it, is not clear-cut at all.
It is particularly difficult when the issue is the employee's behaviour, and when what seemingly looks like a a straightforward disciplinary scenario, turns out to be linked to one or more underlying mental health conditions that the employee may be suffering from.
The courts are increasingly called upon to adjudicate situations like these and it is an area that is evolving rapidly in terms of legal precedent. It has been clearly recognised that simply because disablement is psychological in nature, does not mean it is any less impairing on the normal functioning of an individual.
In Compensation Commissioner v Georgia Badenhorst  ZAECGHC 1, the High Court had to consider a challenge by the Compensation Commissioner in respect of the percentage of disablement that should be awarded for an employee who developed PTSD and associated mental disorders that led to her being mentally impaired, after she had accidentally grabbed a snake in the storeroom at work whilst already having a phobia of snakes.
According to the expert evidence presented, the employee's constant anxiety and other disorders (in accordance with Schedule 2 of COIDA) were likened to someone who has lost a leg between the knee and hip or someone who has lost their arm between the elbow and shoulder, which would justify a 75% disablement ruling. Whilst the Commissioner challenged this percentage, it could not present evidence that would justify the differential treatment of mental disorders to those of physical disorders. The court had no reason not to accept the expert evidence in this regard.
Another interesting case is the recent finding of the Labour Court (3 March 2022) in the case of Western Cape Nature Conservation Board t/a Cape Nature vs CCMA and others [C174/2019] where the employee started to behave increasingly aggressively, damaging property, being insubordinate, being frequently absent and negligent in her duties. The employee had service of 16 years without any major incidents - those that had come up, were dealt with by the employer as 'minor irritations' with no formal disciplinary action taken.
Subsequent to these spate of infractions during a period of 2-3 months, the employer convened a disciplinary hearing with various charges. Prior to the hearing, a doctor's note was sent to the employer that booked the employee off for a period of 2 months and indicated that she was not well and that she had been forced to get help by the doctor and her family. Part of this period was retrospective and the chairperson took issue with the validity of the sick note and also rejected a subsequent doctor's report as 'speculative'. The hearing was eventually conducted in the employee's absence (she had been hospitalised at that point) and she was dismissed for misconduct. Her husband lodged an internal appeal on her behalf, but due to the lack of further medical reports substantiating her incapacity and an indication of when she would be able to attend her appeal, this eventually came to nothing.
At the CCMA, it was found that the dismissal had been both procedurally and substantially unfair. The arbitrator stated that the employer had known at the time that the employee was in hospital and could not attend the enquiry, and that there had been sufficient indication at the time that there could have been a medical explanation for her conduct. It said that the employer should have waited for a formal medical diagnosis or appoint its own expert to examine her, before taking a decision about her dismissal.
In respect of substantive fairness, the arbitrator took into consideration a new psychiatric report (dated almost a year after the dismissal) that was submitted during arbitration, where a psychiatrist that had subsequently been appointed by the employer, provided clinical evidence confirming that the employee has been diagnosed with bipolar disorder and had suffered a manic episode at the time of her dismissal which changed her normal placid character to becoming outspoken and uninhibited in her behaviour at work.
The Labour Court, on review, disagreed with the finding of procedural unfairness, accepting that the employer had given the employee (or her husband) three weeks to submit a further medical report as part of the appeal process. The fat that this was not forthcoming, was not due to any procedural unfairness on the part of the employer.
As regards substantive fairness, the employer argued that the new medical evidence submitted at arbitration should not have been taken into consideration by the arbitrator when at the time of the hearing only a speculative diagnosis had been available to the employer. The Court however found that, since arbitrations are proceeding de novo, both parties are entitled to present new or additional evidence at arbitration. It was also confirmed by the Labour Appeal Court in Independent Municipal & Allied Trade Union obo Strydom v Witzenberg Municipality & others (2012) 33 ILJ 1081 (LAC) that an arbitrator should not confine him/herself only to evidence available at the internal hearing.
In terms of the appropriate remedy, the arbitrator and the Labour Court again relied on the new psychiatric report that indicated that the employee is able to fulfil her duties, provided that she takes her prescribed medication. She was therefore reinstated, although the amount of backpay was limited to the date of the receipt of the psychiatric report.
This last case is somewhat of a predicament for employers, since the employer did not really do anything wrong in terms of the (merely speculative) evidence that it had available at the time of the disciplinary hearing.
The lesson for employers, in my view, is to tread carefully and patiently when they are indeed aware of a possible medical reason for an employee's behaviour. From a practical perspective, it may be prudent to suspend the disciplinary proceedings and perhaps even convert it into an incapacity process for the purpose of finding out if indeed there might be a medical incapacity - rather than rushing ahead and dismissing the employee for misconduct. The problem in mental health situations is exacerbated by the fact that it is unrealistic to expect a quick diagnosis and prognosis. Generally it takes time to get appointments with specialists - and then proper examination, tweaking of medication and other therapies may be required before any real indication can be given of how the employee is likely to be able to function in the workplace going forward, if at all.
This is not something employers may want to hear, and the question might well be asked - "how long" will be long enough? As always, each case will depend on its own merits, but I do believe that taking a bit more time with gathering evidence and determining if you are actually dealing with misconduct or incapacity, will be worthwhile in a situation where the lines are blurred like this.
Workplace mental health and dealing with neurodiversity is becoming very relevant to the workplace and employers are required to take note of the changing landscape and consider their approach thereto going forward.
© Judith Griessel
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