In my article titled “Did you know that you can land yourself in hot water for disciplining an employee?” it was highlighted how important it is to determine whether an employer is dealing with an employee who is capable of doing the job for which they are employed, but they don’t do that job [ in labour law terms referred to as “conduct”  or “misconduct”], and an employee that is incapable of doing the job for which they are employed, [ in labour law terms referred to as “capacity” or “poor performance” ].

It was also highlighted that disciplinary steps may be taken in regard to conduct, but not in regard to capacity for poor work performance and that an employer could end up having to pay 12 months salary for identifying the incorrect category and following that wrong category’s processes.

In addition to incapacity in the form of poor performance, there is another type of incapacity, and that is incapacity for ill health or injury.

When an employee is incapable of doing a job due to ill health and injury, a different process (distinguishable from that which applies to conduct or poor work performance),  must be followed to ensure fairness.

The focus of this article is however not about how to go about possibly dismissing an employee that is incapable of performing their job due to reasons of ill health or injury, but rather with a judgment handed by the Labour Court on 16 May 2018 in the matter of Ockert Jansen & Legal Aid South Africa ( C 678/14 unreported judgment ), and which judgment deals with an employer having dismissed an employee for misconduct, when the issue the employer should have concerned itself with, was the employee’s incapacity due to ill-health in the form of depression.

The facts of the case were briefly as follows :

The employee was suffering from depression for which he was being medicated. He had consulted a number of medical practitioners. His employer was aware of his condition. Due to a number of different factors, the applicant’s emotional and mental condition deteriorated to such an extent that he would, as his coping mechanism, disengage from everything.

The applicant’s condition further deteriorated which eventually resulted in him staying away from work for an extended period of time.

The employee was given notice to attend a disciplinary hearing in regard to, amongst other things: being absent from duty without permission, failing to inform his manager of his absence, and gross insolence in that he turned his back in a disrespectful manner and walked away while his manager was engaging with him about his absence from work.

The employee admitted the allegations at his hearing and raised his mental condition as a defence. The disciplinary chairperson rejected this defence on the basis that there was no medical evidence corroborating his version, and because the chairperson was of the view that she was chairing a disciplinary enquiry for misconduct and not for incapacity.

The employee was dismissed, and he challenged his dismissal in the Labour Court.

The Labour Court found that the employer had knowledge that the employee was a person with a disability, and for this reason, was under a duty to reasonably accommodate him. The employer failed to do this, and instead of dismissing the applicant for misconduct should have instituted an enquiry into the employee’s incapacity due to his depression.

The Court found further that the employee had shown that the reason for his dismissal was because of his mental condition; that it had the potential to impair his fundamental human dignity, and found that the applicant’s dismissal was automatically unfair and that the employer had also discriminated against the employee.

The employee was re-instated with full retrospective effect from 24 February 2014 to 16 May 2018; plus the employer was also ordered to pay the employee a further six month’s salary, ie. a total payment exceeding 4 ½ years salary !!

This case is yet another example of how vital it is that guidance from an expert in labour law should be obtained before deciding to institute disciplinary action against an employee.