The prevalence of depression in the workplace was highlighted in the recent case of Legal Aid South Africa v Jansen  JOL 47984 (LAC), wherein the Labour Appeal Court (“LAC”) had to decide on whether the employee’s dismissal was automatically unfair and whether he had been unfairly discriminated against on the basis of him suffering from depression.
The employee alleged that his depression was the primary reason for his dismissal and that he was subject to differential treatment on that basis, while his employer contended that it was due to his acts of misconduct
The LAC, in reaching its decision that the dismissal was not, in the circumstances, automatically unfair, but as a result of the employee’s misconduct, stated:
“One must ask what was the most immediate, proximate, decisive or substantial cause of the dismissal. What most immediately brought about the dismissal? The proximate reason for the respondent’s dismissal was his four instances of misconduct. It was not his depression, which at best was a contributing or subsidiary causative factor”.
For an employee to succeed in an automatically unfair dismissal claim based on depression, the LAC stated that an employee bears the evidentiary burden to establish a credible possibility that the reason for dismissal was differential treatment on account of being depressed and not for some other reason, such as misconduct.
The Court mentioned that employee depression is not of insignificant relevance and is a prevalent illness in the current environment. The Court further stated that employers have a duty to deal sympathetically with employees suffering from depression and that reasonable accommodation and alternatives short of dismissal should be considered.
The LAC went on to state that “… 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”.
Each case will, therefore, have to be decided on its own facts. While depression is not, on its own, a valid ground for dismissal, it may indeed be a contributory factor in determining an appropriate sanction. Substantive fairness must be the governing factor in an employer’s ultimate decision.