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In my previous article on 6 June 2018, the issue of depression in the workplace was dealt with, where the Labour Court in the matter of Jansen & Legal Aid South Africa had to consider whether the employee had been unfairly dismissed and unfairly discriminated against for reasons related to the employee suffering from depression.

The Labour Court indeed went on to find 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; that the dismissal was automatically unfair; that the employer had discriminated against the employee, and that the employer was thus required to re-instate the employee with full retrospective effect.

The matter has now been considered by the Labour Appeal Court (LAC), and judgment was handed down on 21 July 2020. Before dealing with what the LAC decided, it is worthwhile to again remind ourselves of the facts of the case, which very briefly were as follows:

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

The employee’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 disciplinary hearing, but raised his mental condition as a defence.  

In the LAC, the employer’s contention was that the employee was in fact dismissed for his acts of misconduct and that there was not any causal link to his depression, while the employee contended that the misconduct was caused by his depression, and had he not been depressed, he would not have misconducted himself.

The LAC first set out the law in regard to claims for automatically unfair dismissals and what is required in regard to the requirements of causation viz. factual causation, and then legal causation. In addition, the LAC noted that it is incumbent on an employee alleging that the reason for his dismissal was due to discrimination on prohibited grounds to produce sufficient evidence to raise a credible possibility that the dismissal indeed amounted to differential treatment on that prohibited ground.

I shall not delve into these legal issues because they are an entire treatise on their own, and you in any event probably only just want to know what the LAC decided.

The LAC before turning to the facts of the case, noted that depression must be looked at as a form of ill health, and that an incapacitating depression may be a legitimate reason for terminating the employment relationship but it must accord with the Code of Good Practice: Dismissal. Failure to do so, would render the dismissal substantively and/or procedurally unfair.

The LAC also noted that an employee may not be liable for misconduct in the event of  severe depression impacting on an employee’s ability to appreciate the wrongfulness of his conduct and to act in accordance therewith, and that dismissal for misconduct in such circumstances would be unfair. It also noted that even if the employee is able to appreciate the wrongfulness of his conduct and act accordingly, his blameworthiness may be diminished by reason of depression, in which case, the employee’s depression must be taken into account in determining an appropriate sanction.

This current matter however did not concern any of the above scenarios, but rather with whether the reason for the employee’s dismissal was his depression, and whether he was subjected to differential treatment on that basis ie. had the employee satisfied the necessary criteria in order to prove discrimination and an automatically unfair dismissal ?

The answer to this shall be revealed in next month’s article – kidding – just checking that you maybe hadn’t drifted off to sleep !

The LAC found the following :

  • that the employee failed to present evidence to show that his acts of misconduct were caused by his depression, or that he was dismissed for being depressed;
  • the employee remained reasonably functional and able to carry out his duties;
  • the reason for disciplining the employee was his misconduct and not the fact that he was depressed;
  • even though his depression was a contributing factual cause, there was not an adequate causal link between the depression and the dismissal so as to conclude that depression was the reason for his dismissal;
  • the dominant or proximate reason for the dismissal was in fact misconduct and not depression;
  • the employee failed to prove, either that the treatment accorded to him differed from the treatment accorded to other employees, or, more importantly, that the reason for any such alleged differential treatment was attributable to his depression; and
  • that the employee had thus not established that his dismissal was automatically unfair, nor had he proved discrimination.

Ultimately the employee was unsuccessful in his claim because of the manner in which he had conducted himself and not because depression is un-important in the workplace.

Despite its findings in this matter, the LAC did remind us that an employee who is suffering from depression is not of insignificant relevance and that employers have a duty to deal with same sympathetically and appropriately as prescribed by law, and employers should thus seek expert legal advice to ensure that they do this.

Article written by Craig Berkowitz

Specialist Labour lawyer and Acting Judge in the Labour Court of South Africa

Craig can be contacted on 083 453 1822 or by email at