Labour legislation in south africa

Problem Statement

What protection are employees, who are suffering from Depression, afforded in terms of labour legislation in South Africa? Do the various bodies of labour legislation, the Constitution of the Republic of South Africa and common law provide adequate protection from dismissals in the workplace? International and foreign guidelines and trends are also considered as well as their applicability to the South African labour context.

  1. Significance Of This Research

Depression is a psychological disorder that is affecting, not only the South African workplace, but workplaces abroad as well. This body of work will be investigating what depression is and why is it a problem in the South African workplace. This question will be addressed by reference to research conducted on depression in the workplace, both locally and abroad, nationally and internationally? as well as the use of statistical results concluded from various studies. The next step is then to evaluate if adequate protection against dismissal is afforded to the employees with depression during the period that they are temporarily unable to perform to the required standard.

Thus, the main question addressed is whether South African labour law, namely the Labour Relations Act (LRA), Employment Equity Act and Basic Conditions of Employment Act, the Constitution and common law principles provide a solution to this problem. More specifically, the forms of dismissal permitted in the LRA will be discussed, which include: Incapacity, Misconduct and Operational Requirements. Automatically unfair dismissals will also be discussed in light of an employee who is dismissed due to his/her depression.

International law and foreign law are also taken into account when interpreting the various bodies of employment law, as this is required by the Constitution. A conclusion will then be drawn as to whether adequate protection is afforded to the affected employees. If adequate protection is afforded, it will be evaluated against international and foreign trends. If no adequate solution is provided, then the problems within the law will be investigated. International and foreign trends will then also be considered to determine their applicability in the South African context.

To accomplish this task, bodies of legislation, textbooks, case reports, journal articles as well as internet research will be used to gather the necessary current information.

What Is Depression And What Is It's Relevance In The South African Workplace?

Depression is increasing at an alarming rate as universally, people are being exposed to stressors both at work and at home. South Africa is no exception. One simply has to note the high rate of incidents such as road rage, family killings and suicides to understand that all people, no matter their background, are struggling to cope with stress. Research has revealed that stress directly contributes to the onset of depression.

 

Major Depressive Disorder, or what is commonly referred to as Depression, is a psychological disorder. Psychological disorders are defined as psychological dysfunctions associated with distress or impairment in functioning that is not a typical or culturally expected response. A psychological dysfunction refers to a breakdown in cognitive, emotional, or behavioural functioning. People suffering from this disorder simply cannot perform their daily functions as they use to. They emotionally stop functioning and ‘shut down', they behave in a manner which is out of character, such as not wanting to get out of bed in the mornings nor wanting to work or eat, when they enjoyed those activities in the past. Their rationalisations begin to change, becoming at times, irrational and they are no longer able to stabilise their emotions. They seem to lose the will to live.

A depressive episode may occur at any point in ones life-span. The average duration is anything between two weeks to five months (if left untreated), and can occur up to four times in an average lifespan.

A survey conducted by the International Labour Organisation (ILO) has found that after heart disease, depression in the workplace is the second most-disabling illness for workers. Symptoms of depression appear to be related to job dissatisfaction, work overload and inadequate remuneration. The United Nations Labour Agency found that unclear instructions, unrealistic deadlines, lack of decision making, isolated working conditions, workplace surveillance and inadequate childcare arrangements also contribute to triggering depression.

Companies or Organisations simply cannot exist without their employees, and ultimately the strength of the workforce thus determines the strength of the organisation or company. No matter how sophisticated the organisation's infrastructure is, if the employees are not producing, the organisation suffers.

The ILO released the statistic that one in five workers suffer from psychological disorders and only six percent seek treatment. Most psychological disorders are treatable through either medication or therapy. The majority of people suffering from psychological disorders live ‘normal' lives, and are able to work and keep relationships. But, accommodation does need to be made, as often living with a psychological disorder requires a lifestyle change.

Depression in the South African workplace has been found to be increasing at an alarming rate in every sector. As noted above, depression is a leading cause of absenteeism and low productivity in the workforce.

Research conducted by AIC Insurance on absenteeism in South Africa confirms that the country's economy is losing as much as R12 billion a year due to absenteeism. The average company experiences 4.5% absenteeism on any given day. In certain companies, the figure is as high as 18%. The wellness of employees is thus vital if a company is to improve their bottom line.

Statistics between January and November 2007, released by Sanlam show that of the approximate R 142 million that was paid out for disability claims, 19.85% were for mental disorders and approximately 80% of that was solely for depression. Depression is thus clearly becoming a large and costly problem for companies in South Africa as it not only affects the company's bottom line, but also ultimately the country's economy.

Thus, it is important to be able to identify when an employee is suffering from a psychological disorder such as depression and, when to intervene to provide a remedy. This early detection approach is advisable as research conducted by the ILO has found that bad management inevitably costs companies, not only in the form of a loss of productivity attributed to the poor mental health and the associated despondent attitude of the workforce resulting in absenteeism, but also through a higher staff turnover and the associated costs of recruitment and training of the new staff. It is thus economically advisable for a company to take interest in the mental health of its employees so as to reduce the losses they suffer due to absenteeism as a result of depression and adapt the working environment accordingly.

However, beyond the obvious economic benefits of mentally healthy employees, the law requires an employer to consider their employees and not discriminate against them due to their ill health or disability in any manner or form .

Section 9 of the Constitution ensures each persons right to equality before the law and the right to equal protection and benefit of the law. Included is the right not to be discriminated against on various grounds including disabilities. Section 23 provides for the right to fair labour practices. This encompasses the rights to equality contained in Section 9 as well as the right to a fair relationship between the employee and their employer, including accommodation of both interests to arrive at an agreement.

Thus, an employee with depression has the right to be treated equally with the other employees and to approach the employer to come to a common understanding with regard to the disorder. These rights prevent dismissal by discriminating against him by the mere fact that the employee is ‘ill', even though the disorder is treatable.

Section 22 of the Constitution provides for the freedom of trade, occupation and industry. This fundamental right contained in the bill of rights guarantees each citizen the right to choose their trade, occupation or profession. This right protects the freedom of commercial activity. An occupation is said to be defined as an activity through which individuals seek to provide for not only their material needs, but also in the idealistic sense of their occupation being their vocation, their calling. An individual has the right to choose or change their occupations or workplace. This right also encompasses an implied right that protects the right to practice as it would be unfair to allow an individual to choose their trade, do the necessary training, preparations and legal requirements, then not allow them to practice.

Since depression is a disorder that is manageable, it would be constitutionally unfair to dismiss an employee who has chosen a trade, fulfilled all the necessary requirements (such as training etc) and simply due to their treatable psychological disorder, are not allowed to practice. This is clearly unconstitutional in terms of Section 22 and clearly a violation of Sections 9 and 23 as the employee is being discriminated against on the ground of their disorder / disability, as discussed above.

It is thus vital to have an awareness of mental health issues, especially in order for a manager to be an effective leader. Dealing with depression in the workplace is important, particularly in regard to growth and development of the employees, upholding their basic human rights and thus ultimately improving the bottom line of the company and the economy as a whole.

Protection Afforded To Employees With Depression Within S.A. Law

The LRA and Section 23 (1) of the Bill of Rights provides that everyone has the right to fair labour practices, as mentioned above. On this fundamental right, persons suffering from depression are entitled to both a procedurally and substantially fair dismissal. This fundamental right was also upheld in Section 188 of the LRA.

One must note that currently, specific statutes exist that protect labour practices and thus must be applied before the Bill of Rights may be invoked. Section 188 of the LRA, as mentioned above, provides that a dismissal will only be fair if it is motivated by a ‘fair reason' and ‘was effected in accordance with a fair procedure'. This section makes it clear that fair procedure and fair reason are two separate requirements. Substantive fairness, or fair reason, has two parts, first is to establish why the employee was dismissed, then the second is to establish the adequacy of that reason. If that reason falls with the scope of Section 187 - automatically unfair dismissals, the enquiry ends, unless the employer has a solid defence. If the reasons relate to the capacity or conduct of the employer, or reasons not in Section 187, the adequacy of the reason must be assessed on a case by case basis.

Section 188 (1)(a) of the LRA provides three reasons through which employees may be dismissed. They relate to the conduct (or misconduct) and incapacity of the employee, and the operational requirements of the employer. This classification thus determines the forum in which the dismissal disputes are resolved, and determines the principles that must be applied when deciding if the dismissal was in fact fair. In order for a dismissal to be fair, the concept of fairness requires a correlation between the seriousness of the employees conduct or incapacity (substantive requirement) and the employer's action (procedural requirement).

The categories of dismissals do overlap in certain circumstances, but their procedures are very different. Incapacity, operational requirements, misconduct and automatically unfair dismissals will be looked at as forms of dismissing an employee with depression. In determining whether a dismissal, through these various routes, is in fact fair, the justification is analysed, which depends on the reason for the dismissal given by the employer. In the case of incapacity, the justification is that the employee did not reach the expected attainable performance standard and no other alternative existed. In operational requirements, the justification will be that the employee became redundant. In the case of a dismissal for misconduct, the justification is that the employee has broken a known reasonable rule in the workplace. For automatically unfair dismissals the justification is the employer's defence, that the dismissal was due to the inherent requirements of the job that the employee no longer had. These various forms will be discussed below.

Incapacity

When an employee enters into a contract of employment, there is an implied agreement to work according to a reasonable standard set by the employer. If the employee fails to meet the standard, the employer is entitled to terminate the contract. Terminations for this reason are known as dismissal for incapacity, and are said to be a ‘no fault' dismissal, as the incapacity arises from a lack of skill or from physical or mental ability. This form of dismissal is essentially the employers legitimate loss of confidence in the ability of the employee to perform in accordance with the contract of employment as the employee cannot perform their work to the standard set by the employer . Thus the duty to perform ones work may also be breached if the employee is physically present but mentally ‘absent'.

Incapacity is divided into categories, which are: poor work performance and ill health or injury. The LRA does not distinguish betweens the forms of incapacity; this distinction is drawn in Code of Good Practice: Dismissals (the Code). Although these forms imply that the employee is unable to perform as required, they are two very different concepts. Poor work performance by the employee may be due to inadequate training, ability, skills, knowledge or simply unreliable or outdated machinery. Ill health or injury refers to a temporary or permanent injury or accident (injury), or a physical or mental impairment (ill health). Poor work performance thus differs from ill health or injury as with the latter, the employee would be incapable of performing to the required standard as a result of their illness or injury, not because they merely didn't measure up to the performance standard. Both these forms require the dismissal to be substantively and procedurally fair.

Poor Work Performance

Item 9 of The Code addresses the issue of an employee who is not performing as required. This Item encompasses a 3 stage enquiry. Firstly it provides that in order for an employer to dismiss an employee for incapacity, namely poor work performance, the employer must prove that a standard exists and that it is in fact reasonable, then proof is required that the employee did not meet that standard . The crucial question to be answered in the enquiry is whether the said standard is objective and whether the employee was aware, or should have reasonably been aware of the standard.

The next part of the enquiry in Item 9 requires that the employee be informed of their deficient performance as well as then being given a reasonable time to improve. The courts in A-B v SA Breweries held that although the employer is entitled to set standards, the courts will intervene when these standards are grossly unreasonable. Thus the performance standard is central to any dismissal for poor work performance.

The final stage of the enquiry in Item 9 emphasises that a dismissal should only be a remedy of last resort. No employee may be dismissed without first being made aware of their poor work performance through consultation and given a reasonable period to improve. First, the appropriate instruction, training, guidance and alternative work must be offered. Then, if this is unsuccessful, reasonable accommodation must be made. Once the employer has done all that is expected and to no avail, then dismissal may be the only appropriate sanction.

When applying the 3 stage enquiry discussed above to a situation where an employee has depression, one will find that the employee fails at each stage. In the first stage, the employee is aware of the performance standard when he begins his employment as there is an implied agreement to work to a reasonable standard. The second stage requires that the employee be made aware of his drop in performance. Upon the employer bringing to the attention of the employee his drop in performance level, as much as the employee expresses desire to improve, he cannot as his depression, if left untreated, will worsen. This will result in the performance level dropping further as he loses all interest in activities which he once enjoyed (as mentioned earlier). The third stage requires the employer to provide training to the employee, alternative work or reasonable accommodation. If the drop in performance is due to the lack of training, or boredom in the same job or an accommodation due to a lifestyle change, then the performance level should increase. But, unfortunately, when dealing with an employee with depression, more than likely, none of the suggestions will work as he is no longer motivated to work nor has interest in it thus all attempts will be in vain.

Thus, one will find that the employee fails the enquiry and thus is dismissed as there is no other option left to the employer. The ultimate conclusion is that depression falls through the cracks as it isn't identified and dealt with effectively as not only is there a negative stigma attached to depression, thus only few employees will disclose it to their employers fearing prejudice, but the employers are not equipped to identify it. Thus the same outcome will occur to the next employee with depression in the workplace as they are unable to perform up to the required reasonable standard.

Therefore, depression cannot be dealt with under incapacity for poor work performance as it will pass unnoticed and thus result in an injustice in the dismissing of an ill employee and not deal with the growing problem of depression in any manner or form.

Health Or Injury

Ill health or injury is the second category of dismissal under the incapacity heading. Item 10 of The Code deals with substantive and procedural fairness where the employee's incapacity is due to illness or injury. Item 11 sets out the guidelines that must be followed in order to dismiss the employee. The guidelines provided in the Code will be looked at in the context of an employee who is suffering from depression, to determine if depression is better dealt with as incapacity due to ill health or injury.

Item 11 of the Code entails various factors which must be determined when considering a dismissal for ill health or injury. The factors include: ascertaining whether the employee is capable of performing the work for which he was employed; if the employee is unable to work, then the extent of his inability to perform his duties must be determined; whether the employee's duties can be adapted and the employee accommodated, when reasonable, to continue his duties; and finally if the employee cannot be placed in his former position, the employer must ascertain alternative work, even at a reduced salary, if available.

Only once the above factors are considered, may the employer conclude that there is no other option but to dismiss the employee. The onus rests on the employer to prove that the employee is in fact incapacitated and cannot work and thus that their dismissal would constitute a substantively fair dismissal.

When applying these guidelines to an employee who is suffering from depression, the employee is afforded a little more protection then if he is dealt with under incapacity for poor work performance. Only the ill health component is applicable as depression is not an injury, it is a temporary psychological disease affecting ones mental health thus falling under the category of ill health.

Upon applying the first requirements of Item 11, one can conclude that the employee is in fact not, at that point in time, capable of performing his work. This is as a result of the effects of depression on the individual. He loses the will to do those activities he once enjoyed or did at a reasonable standard, and no longer has any motivation or interest in performing his duties. Thus at that point, he is temporarily incapable of doing his work. This requirement merely assesses the extent of the capability of his work performance at that point in time and not the cause of the lessening performance.

The enquiry then moves on to the second part, which places an onus on the employer to attempt to aid the employee. The employer is required to determine the extent to which the employee can perform as well as adapt either his work environment or his duties, or to provide alternative work. This could well provide the depressed employee with a certain amount of protection, as the employer is required to determine the extent of the performance ability, provided one of two situations occur. Firstly, that the employee knows he is depressed and discloses it to his employer, but negative stigma attached to depression plays a role as to whether or not the employee wishes to disclose his illness to his employer. Secondly, the employer recognises that either the employee is depressed or that the employee is not well and directs him towards professional help, which would identify the problem of depression.

If the depression is caused by the work itself, then the solution proposed in Item 11 of alternative work offered or accommodation would possibly solve the problem. However, if the cause of depression is something other than work, when the employee returns to full health, he finds himself in other circumstances regarding his work which he may or may not enjoy, which in turn may lead to another depressive episode. This, however, requires the depression being identified so that an appropriate solution may be found.

In theory, Item 11 would offer some protection to the employee, however, due to the two variables mentioned earlier - the negative stigma and employers not being equipped to identify depression, there is a very real possibility that once again it would be unnoticed as the dismissal system would not identify it and the employee may be dismissed for his ill health. All that is required is to assess the extent of the incapability of performing his work for that particular time period. If the performance level doesn't rise, the employee is dismissed and thus the true reason remains unidentified and thus unnoticed.

Item 10 of the Code addresses the nature, degree and extent of the incapacity, as well as providing for reasonable accommodation, it elaborates on the second part of the enquiry found in item 11. Item 10 provides that when incapacity on the grounds of ill health or injury is temporary, the employer is obliged to ascertain the extent of the incapacity, and if the employee is likely to be absent. If the time period of absence is unreasonably long, the employer must investigate all other alternatives short of dismissal. When the alternatives are considered, the following are relevant factors: the nature of the job, the period of absence, seriousness of the illness and the possibility of securing a temporary replacement for the ill employee. The cause of the incapacity is also relevant as well as if counselling is appropriate.

As discussed earlier, research has shown that the leading cause of absenteeism in the workforce is depression. Dismissal is inappropriate if the absence is for a relatively short period, although habitual absenteeism may warrant a dismissal even for medical reasons. Various factors are to be taken into account when evaluating the reasonableness of an employees absence, such as strategic importance of the employee's job, their length of service, how easily they may be temporarily replaced, the financial capacity of the employer to make arrangements to replace the ill employee, the prospect of the employee recovering as well as the effect of the employees absence on the other employees.

The provisions of the Basic Conditions of Employment Act (BCEA) must be taken into account when deciding whether or not to dismiss an employee due to ill health or injury due to excessive absenteeism. An employer is entitled to dismiss an employee where it can be assumed that the employee's illness clearly exceeds their sick leave entitlement, even though at that point in time, the leave need not be exhausted. The BCEA gives every employee a particular amount of sick leave implying that when an employee is genuinely incapacitated, they should be protected against dismissals during that period only.

Dismissing an employee with depression as incapacity for ill health requires an employer to satisfy various requirements (discussed above). However, an employer cannot be expected to continue employing an employee who is no longer productive. The nature and size of the employer's business must be considered as small businesses may not have the resources to cope with and support a non productive employee nor be able to provide alternative work. As a result, an employee suffering from depression in a larger company has greater job security than at a smaller company as the larger company can afford to spend more on accommodating the employee.

Although incapacity for Ill Health proves to afford a depressed employee with more protection than poor work performance, it is still not sufficient. As discussed above, only the symptoms are treated, i.e. adapting the work environment or finding alternative work for the employee, ignoring the cause. A depressed employee may respond to these changes at first, but they will not last as depression causes the employee to lose motivation and interest, as already discussed. Thus resulting in the outcome of a dismissal as the employer has in fact done all he is required to do and the depression will continue to pass unnoticed.

As discussed above, treating depression as an incapacity for poor work performance affords the employee no protection as the depression goes unnoticed thus allowing it to worsen. As a result, ultimately causing the dismissal of the depressed employee as regardless of the employer's accommodations and attempts at increasing the work performance, a depressed employee will only worsen as that is the nature of the psychological disease until it either passes or is treated.

Incapacity for Ill health affords little more protection. It requires the employer to only dismiss in the last instance and only recognises the said employee as having an incapacity for ill health. Although the employer is required to determine the extent of the capability of the performance, it does not require an inquiry as to the cause of the lessening performance. Following the required steps in Item 11 may not improve the performance with any accommodation or alternative work. Thus, once again, resulting in the employees dismissal and the cause being ignored.

Operational Requirements

A variety of scenarios exist that may result in an employer needing to dismiss one or more employees. Section 188 of the LRA, in line with international labour standards, recognises the employers needs and operational requirements, in certain circumstances, are valid reasons for dismissal. Thus, operational requirements are accepted as another form of dismissal recognised in the LRA.

S213 of the LRA provides that dismissing an employee for operational requirements means that the dismissal was due to economic, technological, structural or similar needs of the employer. Thus, this is a ‘no-fault' dismissal on the part of the employee and is purely dependent on the employers' needs and requirements.

Section 189

Section 189 deals with small scale dismissals, i.e. dismissals in companies that have fewer than 50 employees. Before the S189A Amendment in 2002 (discussed below), there was no statutory definition provided for substantive fairness. The courts therefore determined the question of substantive fairness as one of fact. Thus, the employer was expected to prove various facts.

Firstly, the employer must prove, on a balance of probability, that the reason given is one based on the operational requirements of the business, i.e. that the reason falls within the given definition of operational requirements. Secondly, the employer must prove that the operational reason exists and it is the real reason and not merely an easier way of dismissing employees by avoiding more stringent formalities.

These requirements seem to provide some protection to the employees as the employer must prove that the principle reason for the dismissal does in fact fall within S189 and no other section. However, in various cases, the courts have held that the LRA doesn't distinguish between operational requirements when the company is fighting for survival and when a profitable business just wanted to increase their profit margin. The employers need not prove that actual costs were reduced. Thus by merely showing that by dismissing the employee their profits will increase, is a sufficient reason to dismiss as the courts will not interfere with legitimate business decisions.

However, it fails at the second stage, where the employer must prove that the operational requirement is the real reason. As discussed above, the justification of the employers' entitlement to make a profit affords the employer a rather easy method of getting around the real reason of the dismissal as the courts will not make business decisions. He must merely show that a profit is to be made in this redundancy.

Employers are not expected to keep redundant workers, S189 of the LRA does, however, require the employer to try and avoid retrenchments. The Labour Appeal Court held that the employer must show that the dismissal could not have been avoided. The courts require the employer to show that it was in fact necessary to dismiss the employee to effect saving as well as it must be rational and justifiable.

An employees position becoming redundant due to a technological, structural or similar need or actual economic needs is truly a no-fault dismissal. However, the problem arises when the employer wishes to dismiss an employee for another reason, such as incapacity or misconduct, and opts to restructure the company, claiming economic reasons and dismisses the said employee. The factual proof required does protect the said employee to a point. The employer must show that the reason falls within operational requirements.

This is not a problem as a company always needs to make a profit.

There thus exists an overlap of reasons for dismissals on the basis of operational requirements as the employer always needs to effect saving and the situation where the employee is no longer able to fulfil their contractual obligations due to their illness. It is far less onerous on the employer to show that due to economic circumstances, the employee must be dismissed (as the company's bottom line is being affected), rather than having to prove that the employee is incapacitated and thus the dismissal was for fair reason as proof is required that the employee did not meet the standard required by incapacities. The Gouws case recognised the ambiguous dividing line between dismissals for operational requirements and the other grounds for dismissals.

Thus the problem of depression continues unnoticed and ignored as it is either not identified or if identified, not knowing how to deal with it. This allows the problem to continue resulting in the next depressed employee being made redundant as well. This form of dismissal thus suffers from the same problem as incapacity did, which is a lack of instruments being put in place to identify depression and deal with it effectively.

Section 189A

S189A of the LRA is an amendment put into effect in 2002 that addresses large scale dismissals. This section addresses both the size of the employer and the number of employees to be dismissed. Subsection 1 distinguishes the difference between a large employer which is one that employs more than 50 employees and a small employer which employs less than 50 employees. S189A only applies to large employers as the minimum number of employees to be dismissed, for this section to apply, is at least 10. Normally, a single employee with depression is dismissed and thus does not fall within the ambit of S189A.

However, S189A goes further than S189, as it requires the Labour Court to evaluate the dismissal. The Labour Court was perceived as being ineffective in protecting employees against dismissals for operational requirements, thus the court is now obliged to scrutinise the employers rational. S189A(19) requires the Labour Court to determine if the employees were fairly dismissed by determining the following: if the dismissal was to give effect to a requirement based on the employer's economic, technological, structural or similar needs; If the dismissal was in fact based on operationally justifiable rational grounds; whether there was proper consideration of alternatives; and if the selection criteria was fair and objective. This affords the employees far more protection than is provided under the previous S189. The procedure for dismissal under S189 lacked the substantive fairness enquiry S189A has, thus allowing reasons such as profit increase, to justify a dismissal, as discussed above.

Requiring the courts to apply S189A(19) forces a much more in depth look at the substantive fairness of the dismissal as it contains a procedural element, not merely whether the reasons falls within the definition of operational requirements, and it is in fact the real reason, as is required under S189. The procedures in S189A were designed to avoid dismissals, thus are far more extensive than under S189.

The procedure in S189 is relatively straight forward and exists in both sections, such as the requirement of consultation, parties to the consultation process, as well as the selection criteria. However, S189A goes further as it not only requires the courts to get involved and actively investigate the reason for the dismissals, but also introduces additional requirements. It affords either party the right to request the CCMA appoint a facilitator to assist the parties in consultation as well as a 60 day moratorium during which the employer cannot dismiss.

These small changes have made a big difference. They have given employees more protection against dismissals than before under S189. However, the problem still remains, an employee with depression is theoretically not protected by S189A. However, the question now is whether the Labour Court will use the guidelines given in S189A, namely S189A(19), the inquiry into substantive fairness, for small scale dismissals.

In recent cases, both the Labour Court and Labour Appeal Court appear to be more prepared to investigate the employer's business decisions then they were in the past. The Labour Appeal Court in BMD Knitting Mills (Pty) Ltd held that the fairness of the reason for dismissal must be fair to both parties. Thus the court may inquire into the reasonableness of the decision taken as well as the proposed procedure to be followed. This allows the courts to examine the substance of the reason given by the employer. This idea was further up-held in Chemical Workers Industrial Union & Others. This trend in the courts, now require the employer to show that the best possible option was made in the best possible business sense. It is hoped that the principle of substantive fairness in S189A will be consistently applied in small scale dismissals (S189), as the trend seems to be moving in that direction.

Although S189A would provide an employee with depression more protection than under S189 as the enquiry is more extensive, the same flaws apply. Currently the courts will not oppose a company claiming economic circumstances who can prove that an employees position has become redundant and thus a dismissal would increase the company's profits as the main reason for dismissal, as depressed employees are a liability as they cannot work Thus, resulting in depression being undiagnosed and thus, once again, unnoticed.

A dismissal for operational requirements may be distinguished from a dismissal for incapacity or misconduct because a dismissal for the latter two originates in some way from the employee himself, where as operational requirements originate from the employers needs. A dismissal for incapacity as well as for the employers operational requirements are thus ‘no-fault' dismissals. The line between dismissals for incapacity and operational requirements is often not clear. One must thus be wary of the fine line between a dismissal for operational requirements and other dismissal grounds.

The courts themselves are unsure as to the approach they should take, whether the substantive fairness definition found in S189A(19) applies to S189 dismissals. They do not know where to place psychological illnesses such as depression. By not examining the true motive for the dismissal, nor wanting to interfere with the business, the courts have allowed various dismissals to be passed as for operational requirements that were not. This has resulted in the employee being left in a very uncertain position, as when the employer wishes to dismiss them, they may relatively easily do so through operational requirements.

Thus this ground offers even less protection to employees with depression then any of the others due to its uncertainty as well as the principle that the company is entitled to make a profit. Thus, as discussed above, ultimately affecting the country's economy as the company's bottom line is affected. By placing depression under the umbrella of operational requirements due to the employee becoming redundant, does not afford the employee the protection that is envisaged in the fair labour practice right in the Constitution as the problem is not being recognised and thus continues unnoticed and unaddressed.

Misconduct

Misconduct is a listed ground for dismissal found in S188 (1)(a) of the LRA and is the most common justification for dismissal in SA. A misconduct is said to have occurred when an employee has intentionally ignored the rules of the workplace, which may be implied or expressly stated in the employment contract or provision of the employers disciplinary code. Misconduct may take various forms, although the essence is a breach by the employee of the terms of the employment contract.

Misconduct is essentially the legitimate loss of trust in the employee relating to one or more incidents demonstrating the lack of trustworthiness on the part of the employee. Item 1 (3) Of the Code of Good Practice: Dismissals (Dismissal Code) provides a key principle:

“Employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees”

Dismissal should be imposed as a last measure in a series of penalties or in respect of serious misconduct, in accordance with the concept of progressive discipline. S188(1) of the LRA provides three principles to be adhered to in order for a dismissal based on misconduct to be fair. Firstly, that the dismissal must not amount to an unfair dismissal, secondly that the reason must be substantively fair, and, lastly, the procedure followed must be fair. S188(2) then requires the employer to take into account the relevant code of good practice.

Item 7 of the Dismissal Code provides that various factors must be considered to establish substantive fairness when dismissing for misconduct. The factors to be considered are: whether the employee has contravened a rule or standard regulating conduct in, or relative to the workplace and if the rule or standard was contravened; whether or not the rule was a valid or reasonable rule or standard; the employee was aware of or could have reasonably been aware of the standard; the rule or standard has been consistently applied by the employer; and whether dismissal was an appropriate sanction for the contravention of the rule or standard .

The first part of this investigation requires that a rule or standard has been contravened. This requires proof that the rule or standard exists. This is indicated by looking at either the employment contract (implied or express terms) as well as any rules of conduct or disciplinary codes. Once it has been established that the rule or standard does exist, the employer must show that it has been contravened by the employee. In the context of a depressed employee, once the rule has been shown to exist, the employer can show that the depressed employee has broken it. The most common misconduct by a depressed employee is a time-offence, i.e. either constant absenteeism or habitually arriving late.

The next stage of the enquiry requires the employer to prove that the rule or standard is reasonable and valid. This is a factual enquiry. The nature of the business is looked at as well as the circumstances in which the business operates.

The following stage requires that the employee must have been aware, or should have been reasonably aware of the rule they broke. Thus, in order to break the rule, intention is required. Intention is to know and to will an act or result or as defined by Neethling et al ‘a person acts intentionally if his will is directed at a result which he causes while conscious of the wrongfulness of his conduct'. A test often used in criminal law is to look at the persons state of mind. A person is only blameworthy if they have sinned in their mind. Snyman refers to general incapacity defences which encompass mental illness and emotional distress. This is a valid defence if the individual can prove their mental illness at the time the misconduct was committed and that it was a direct result thereof .

Thus, if the employee is depressed, they are suffering from a mental illness as they breakdown cognitively, behaviourally and emotionally. When suffering from depression, the employee lacks the intention required to commit a wrongful act.

The following stage requires that the rule be consistently applied. This is to determine if the employer has historically consistently applied the rule or has been inconsistent. If an employer has condoned the contravention in the past, he cannot decide that he will enforce the rule unexpectedly. The employees must be informed that the rule will be enforced from then on.

The final stage requires that dismissal be the appropriate sanction. Factors to be looked at are outlined in Item 3(5) and (6) of the Dismissal Code which include gravity of the misconduct, length of service by the employee, disciplinary record and personal circumstances.

S188(1)(b) of the LRA requires that the dismissal for misconduct to be procedurally fair. Procedural fairness entails a fair disciplinary enquiry. The outline for this enquiry is found in Item 4 of the Dismissal Code as S188(2) requires the Code of Good Practice to be taken into account.

The elements of procedural fairness that are found in Item 4 are: that an investigation must be conducted to determine the grounds for dismissal; the employer must notify the employee of the charges against him; the employee must be given a reasonable time to prepare a response; the employee is entitled to state a case in response; the employee is entitled to the assistance of a trade union representative or fellow employee; the decision must be communicated to the employee, preferably in writing and; the employee must be informed of the reason for the dismissal.

Employees have the duty, in terms of their employment contract, to be at their work station during working hours, unless they have an adequate reason to be absent. Under the common law, if the employee wilfully does not work during the agreed working hours, this constitutes breach of contract.

Although a depressed employee may be guilty of a number of misconducts, time-offences are the most likely. As mentioned above, depression is a leading cause of absenteeism and low productivity in the workforce. The Dismissal Code does not expressly mention time-offences, such as absenteeism or unpunctuality. However, the Labour Court recognises an employees general duty to perform as agreed in terms of the employment contract, and a failure to do this is potentially a disciplinary offence. To determine the fairness of a dismissal for absenteeism or unpunctuality, various factors must be assessed such as the reason for the employees absenteeism, the employees employment record as well as the employers treatment of the behaviour in the past.

The employer may not dismiss at the first incident of absenteeism unless the period is unreasonably long. Employees must generally be given an opportunity to explain their absence. For a dismissal to be fair with regard to absenteeism, the courts require the time period of the absence to be unreasonably long. If the time period was in fact unreasonably long, and it is perceived that the employee has abandoned their employment, if the employee returns, the courts require the employer to offer the employee an opportunity to explain his absence, as well as take personal circumstances into account. For short frequent periods of absence due to illness, the courts have held that warnings are sufficient to dismiss the employee and a medical inquiry is unnecessary. The court in Metal & Allied Workers Union and Horizon Engineering (Pty) Ltd held that the onus rests on the employee to justify his absence through a reasonable explanation such as illness. It is normally adequate if the employee can prove that it was beyond their control.

Employees on authorised sick leave are entitled to remain away from work for the duration of their sick leave, unless it has become clear that they are abusing their sick leave and thus are instructed to return. If the employee is absent due to a serious illness, they cannot be said to be at fault. Depression is considered a serious psychological illness at it can completely incapacitate an employee for a period of time.

If an employee who has not been properly diagnosed and seems to be abusing their sick leave as they are either frequently on sick leave or are on long periods of leave, may be dismissed for misconduct due to time-related offences. An employee with depression is adversely affected and cannot work effectively or for a time period, they are mentally ill and thus lack the element of intention required to commit the misconduct. Although they are aware of the rule, they are incapable of abiding by it due to their temporary impairing illness (as discussed earlier). A depressed employee doesn't have the mental capacity to commit a misconduct.

The procedural aspect contained in Item 4 of the Dismissal Code doesn't provide much more protection. If he is aware of his depression and has the disposition to defend himself, he would need psychological proof that he is depressed. Although, he would be guilty of the, for example, time-offences but has a justification for it. Item 4, however, does not contain guidelines for witnesses or external professional evidence. If the employee is guilty of the misconduct, regardless of his depression, he may still be dismissed for it. More protection is given in terms of Item 7 as to commit a misconduct, the mental element of intention is required, which the employee lacks when depressed.

The main difference between misconduct and the other listed grounds is that employees who commit a misconduct can be held accountable for their conduct, where as poor work performance due to ill health, incapacity and operational requirements are no fault dismissals. Where negligence or poor work performance results from circumstance beyond the employees control, such as a physical or mental incapacity, it should be treated as such. Thus, it is inappropriate to deal with depression as a misconduct as the mental element is lacking. However, it is very difficult to draw a clear distinction between the various forms of dismissal and misconduct as for example, negligence may arise from either misconduct or incapacity or both.

As discussed above, misconduct offers no more protection to employees with depression than any of the other grounds as the employee is bound to commit a misconduct as they have no interest in their work. However, they do lack the mental element of being found guilty of a misconduct. Thus, this is not the appropriate method of dealing with depression as it does not address the problems, but merely disciplines the symptoms.

Depression As A Disability

Disabilities is a category that has direct protection given in terms of both the Labour Relations Act and the Constitution, among others. Discriminating against anyone on grounds of disability is unconstitutional, and dismissing them for having a disability is automatically unfair

As mentioned earlier, depression is a debilitating psychological illness that causes the employee to under perform from the standard they once did. The question arising out of this problem in the workplace is whether depression is a disability. The first step in determining if depression is a form of disability is to critically evaluate the definition of a disability and its' applicability to depression in the workplace.

Both the Constitution and the LRA have general equality provisions for persons with disabilities, although there is no statutory definition of disabilities in these Acts. The Employment Equity Act, in Item 5.1, however, does define persons with disabilities. It defines them as “people with long term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in the workplace”. Basson et al states that the term disability includes severe stress and depression as it may affect an employee in the workplace to such a debilitating extent.

The Application Of The EEA's Definition Of Disability To Depression

In order to understand the intention of the legislature in the EEA, the above given definition must be broken down into the necessary components. ‘Impairment' is defined as being either mental or physical. ‘Mental impairment' means “a clinically recognised condition or illness that affects a person's thought process, judgement or emotions”. ‘Long-term' means that the “impairment has lasted or likely to persist for at least 12 months”, and ‘Reoccurring' has the meaning that it “is likely to happen again and to be substantially limiting”. In order for the disability to be substantially limiting, it must substantially limit the persons ability to perform the essential functions of the job. In determining if the impairment is substantially limiting, medical treatment or other devises must be considered in order to prevent or remove the adverse effects.

In applying the above definitions to depression, depression is a mental impairment as it is clinically recognised, but it also impairs a persons cognitive functioning, emotions and judgement. It not only affects and impairs the individuals' daily life, but also their ability to perform their given work. Depression is not long term as the maximum period for which it is said to last is approximately five months if left untreated. Depression is a reoccurring psychological disorder as the average reoccurrence is four times within a life span. Thus, depression does fall within the scope of the definition for disabilities and thus is protected under both the Constitution and the LRA

Protection Given To Depression As A Disability In Terms Of The Code Of Good Practice: Disabilities

Drawing from the above conclusion that depression is a disability, the Code of Good Practice: Disabilities (Disability Code) provides protection for these employees against dismissals. Item 6.1 of the Disability Code, provides that employers should make reasonable accommodation for employees with disabilities, in the most cost effective manner. Reasonable accommodation applies to the recruitment and selection process, the work environment, the way work is done, evaluated and rewarded as well as benefits and privileges. This must be done either when the employee discloses the disability voluntarily or when it is obvious, as well as when the work environment changes and thus impacts on the employee's ability to work. Experts must be brought in when necessary. The accommodation will depend on the degree and nature of the disability as well as on the employee, it may also be permanent or temporary. Reasonable accommodation may also include adjusting working time and leave as well as offering support. However, the employer is not obliged to accommodate a disabled employee if it would impose an unjustifiable hardship on the business of the employer. Thus, an employee in a larger company is afforded greater protection against dismissal then in a smaller company as there is a greater chance of accommodation in the larger company.

Item 11 of the Disability Code addresses the situation of retaining employees with disabilities. Subsection 4 provides that if an employee is frequently absent from work for reasons of illness, the employer is obliged to assess if the employee merely requires reasonable accommodation. Employers also have the option of offering alternative work. The general test is whether the employer can be reasonably expected to retain an under-performing employee for the time necessary for the employee to again produce at an acceptable level. Once again we have the distinction between small and large companies becoming apparent. Larger companies can afford to keep an under-performing employee for a much longer period then smaller companies, thus affording the employee more time to recover and begin performing again.

Protection For Depression As A Disability In Terms Of The Constitution

 Depression falling within the scope of disability gains added protection from dismissals under the Constitution. The equality provision found in Section 9 of the Constitution provides that everyone has equal right and protection under the law, full enjoyment of the law including measures to protect and advance persons as well as not to be unfairly discriminated against directly or indirectly on any ground including disability. This fundamental right ensures that an employee is not discriminated against, in terms of rights, protections, promotions or even dismissals, due to their disability.

The grounds contained in Section 9 are objective as they are based on characteristics which may have an effect on the individual's dignity. Section 10 of the Constitution provides protection for the fundamental right of ones dignity. Dignity is believed, by the constitutional court, to lie at the heart of any prohibition of unfair discrimination. This right recognises ‘the intrinsic worth of human beings' as well as the fact that ‘human beings are entitled to be treated as worthy of respect and concern'.

Merely because an employee is ill, with a psychological disorder, does not entitle the employer to treat that person in an undignified manner nor discriminate against them on that basis. Discrimination against the employee due to their illness also infringes their dignity, as they are entitled to respect and concern and thus the employers have a duty to uphold it. By categorising depression as a disability, the employees' right against unfair discrimination as well as their dignity is protected. If depression were to be categorised as a disability, greater care would be taken by the employer before dismissing an employee for simply suffering from depression and thus not performing up to the required standard. The employer would then have an active interest in the well being of their employees and thus aiding in the employee seeking treatment, as an early detection system would then be put into place.

Protection For Depression As A Disability In Terms Of The LRA

Section 187(f) of the LRA addresses automatically unfair dismissals listing grounds that constitute an automatically unfair dismissal, including disabilities. The purpose of the inclusion of disability under Section 187 is to prevent discrimination against this minority. If an employee is dismissed on one of these listed grounds, regardless of procedure, it is automatically unfair. A dismissal due to any of the listed grounds in Section 187 of the LRA is an infringement on the employees basic human rights and thus the employer cannot argue that the dismissal was for a fair reason (unless it falls within the inherent requirements of the job which is discussed below).

Section 194 of the LRA provides for compensation for employees who are unfairly dismissed. S194(1) provides that the employee is entitled to no more than the equivalent of 12 months remuneration, whereas subsection 3 provides that if the employee's dismissal was automatically unfair, then the employee is entitled to no more than the equivalent of 24 months remuneration. This section adds emphasis on the severity and protection given to employees whose dismissals fall under Section 187.

If an employee is dismissed on any ground listed in Section 187, the LRA provides the employer with two defences. The first is that the dismissal was based on the inherent requirements of the job, and the second deals with age as the employee has reached retirement age. The law does not clearly explain what is meant by the ‘inherent requirements of the job', however ‘Inherent requirements' is said to depend on the nature of the work, thus if the employee cannot perform his work, then he cannot satisfy the requirements.

Although a justification for dismissing an employee with a disability is the inherent requirements of the job, it is not necessarily the last available nor the appropriate remedy when the employee has depression. Depression is not long term thus dismissing an employee for lacking the inherent requirements for a short period, is not justified or substantially fair. As required in the Disability Code, alternative work or accommodation is required as through therapy and / or medication, an employee will regain the inherent requirements after a relatively short period. Thus, the debate of the larger companies being able to afford to keep a non-producing employee when compared to the smaller companies becomes relevant. If a company simply cannot afford to keep non-producing employees, they cannot be expected to, as discussed earlier under Incapacity.

There exists an overlap between the provisions dealing with dismissals for Incapacities in the LRA and the prohibition of discriminating on the grounds of disabilities found in the Disability Code. This is because depression can both be classified as a disability, as well as fall under ill-health in Incapacities (both discussed above).

Incapacity is said to, at times, be interchangeable with disability. A disability is either physical or mental, can be work related such as depression, and become so severe that it affects the employee at work. Thus, in this category of dismissals, depression may be regarded as a disability, thus enabling the employer to dismiss the employee for incapacity due to ill health or injury. The purpose of the anti-discrimination legislation, as already mentioned above, is to protect employees from dismissals based on their disability. The law is unclear as to which category disabilities would fall under.

Incapacities suggest that the employee cannot perform their expected duties at an acceptable standard. Disabilities suggest that the employee is able to perform their expected duties at an acceptable level with reasonable accommodation and assistance. The overlap occurs when an employee with a disability is dismissed, as their disability falls under the definition given in the EEA. The commissioners have held that in such circumstances, the employer should follow the guidelines laid down in the Disability Code.

Conclusion

In the foreword of the Disability Code, it is noted that the purpose of this code is to protect persons with disabilities. The justification is that disability is a natural part of the human experience and does not diminish the right of the individual to belong and contribute to the labour market. In order to do this, the Disability Code provides that where there is opportunity, reasonable accommodation is to be made for the individual as they not only contribute to the workplace with skills and abilities but also ultimately to the country's economy.

Both the category of incapacity and the Disability Code require the employer to accommodate the employee, offer alternative work when possible and dismiss only as a last resort. Under the Disability code, the problem with accommodation and alternative work is the same as was discussed under incapacity - that it is more viable for larger companies to accommodate an employee with depression than smaller companies.

The advantage of depression falling within the scope of the definition of disabilities in the EEA is that the employee is afforded more substantial protection from dismissal as protection will stem from not only the Disability Code, but also the LRA, and most importantly, the Constitution, as well as international and foreign legislation (discussed below) making the dismissal automatically unfair. The protection given to the depressed employee if classified as a disability is far more comprehensive than under any other form of dismissal.

Foreign Law

Section 39 of the Constitution requires one to consider foreign law as well as international law. A failure to do so would be unconstitutional. The Constitutional Court in the case of NUMSA & Others v Bader Bop (Pty) Ltd & another held that the proper approach to interpreting the LRA was to interpret it in accordance with foreign law and the Constitution.

The World Health Organisation and the ILO both recognize that mental health problems are among the most important contributing factors to disease and disability worldwide. Estimates in the United States of America show that one in ten workers will develop an episode of depression serious enough to require time off from work. One in four workers in the United Kingdom have psychological disorders and one in fifty have depression. In the European Union, 20% of the adult working population suffers from a psychological disorder, most common being depression. 62.8% of Japanese workers are suffering from severe stress in which half leads to a depressive episode. It is evident that depression is not only a problem being experienced in South Africa, but globally as well.

Both Case law and Legislation require foreign law to be considered when interpreting labour legislation in South Africa. It is thus essential to consider the legislation as well as the debates in other countries. Countries such as the United States of America (USA), the United Kingdom (UK) and Japan, as well as the European Union (EU), have implemented laws to deal with the situation where an employee has a psychological disorder.

The USA

In the USA, the Americans with Disabilities Act (ADA) guarantees equal employment opportunity for individuals with disabilities. The ADA defines the term "disability" as a physical or mental impairment that substantially limits one or more of the major activities of such individual. Commonly recognised impairments that may interfere with the performance of life activities include any mental or psychological disorder that is generally recognised by medical authorities such as depression. This definition was upheld in McClarty v Totem Electric, the tribunal added that disability means a sensory, mental or physical impairment that is medically recognised and diagnosed, or that exists in a record of history or is perceived to exist. This statute expressly states that it can be permanent or temporary as well as that a disability can exist whether or not it impairs the ability to do a particular job or engage in any other activity. The ADA provides that an employer must reasonably accommodate those employees with psychological disorders as long as it does not result in undue hardship for the employer.

The ADA was enacted in accordance with the Fourteenth Amendment of the Civil Rights Act of 1964 which provides that all persons are entitled to equal protection before the law. The ADA fills in the gap left by Section 504 of the Rehabilitation Act of 1973 as both laws cover any situation a disabled person may be in. Section 504 defined disability in the same way as the ADA thus including psychological disorders but not listing the disorders. The deciding factor under Section 504 is whether the impairment limits one or more major life activity . Both of these pieces of legislation have resulted in an effective source of protection for employees with depression on the basis that discrimination on such grounds is no longer valid and there is an onus on the employer to accommodate the employee.

The UK

The UK has a piece of legislation that deals with psychological disorders such as depression. The legislation is the Disability Discrimination Act (DDA). Before the DDA was revised in 2005, the act defined mental illness as having to be ‘clinically well recognised'. Upon its revision, this definition was removed and instead of substituting it with a list of impairments that would be covered, the revision now only considers the effect of the impairment on the individual.

The DDA provides that disabled persons are not to be directly or indirectly discriminated against on the grounds of their disability. The DDA also provides for the employers to make reasonable adjustments for the employee to continue working. These are the same principles that both South Africa and the USA apply in their labour legislation.

The DDA defines disability as a physical or mental impairment that has a substantial long-term adverse effect on their ability to carry out normal day to day activities. This definition includes depression as held by English Tribunals.

Japan

In 1982 the first Long-term National Plan of Measures for Persons with Disabilities was developed in Japan, which was a result of the United Nations Decade of Disabled Persons (1983-1992) and the World Program of Actions for Disabled Persons from 1982. In 1993, the second Long-term Plan of Measures for Persons with Disabilities was established, which corresponded to the Asian and Pacific Decade of Disabled Persons. This prompted Japan to amend its Basic Law for Persons with Disabilities (BLPD) to include this new Long-term National Plan.

In terms of the Long-term National Plan, employers are responsible for securing the health and safety of their employees. Employers are thus required to provide counselling to their employees. This method, referred to as EAP (Employee Assistant Program) has had much success as the employees performance in the work place has improved. This method has also been employed in the USA and has had much success as well.

The BLDP defines ‘persons with disabilities' as individuals whose daily life or social life is substantially and continuously limited due to physical, intellectual or mental disability. This definition is said to include depression. The BLDP goes on to provide that disabled persons are entitled to opportunities to participate in economic and all other activities in the society. The following subsection sets out an anti-discrimination clause, which states that there is to be no discrimination against any person with a disability, nor any violation of their rights and benefits.

EU

In the past, European States differed widely on how they dealt with disabilities. However, the advent of the European Union changed that. Member states no longer differ on the law that is applied to persons with disabilities but rather on how the law is applied. Traditionally, disability was dealt with through a strong social state model and not through civil rights or non-discrimination law as the USA and UK had done. The problem with this approach in the EU was that it projected the view that disabled persons were helpless and objects of pity, thus not affording the individuals standing on how they were treated. This social model is now being refreshed due to the need of more citizens and workers in the labour market that are able to pay taxes. From this it is clear that the EU is moving to a more civil rights based approach which will afford individuals with disabilities remedies to challenge discriminatory behaviour towards them.

The EU has a very strong legal basis for anti-discriminatory legal action in Article 13 of the Treaty of Amsterdam which will provide the grounding for anti-discriminatory legislation to protect employees with disabilities. The Anti-Discrimination Unit resulted from this treaty. The EU Framework Employment Directive of 2000 has adopted some concepts from the ADA. Article 21.1 of the EU Charter of Fundamental Rights reinforces Article 13. An Anti-discrimination Directive much like the ADA should be in place between 2009 and 2010. Thus, dismissing an individual on the grounds of their disability is prohibited due to the anti-discrimination legislation in place. This is the same approach as is followed in the USA and South Africa.

However, to date, no all encompassing definition of disability has been unanimously agreed upon. The definition most commonly used is the British definition (discussed above) which is modelled on the ADA definition. Although, a recent decision in the European Court of Justice has held that sickness is not a disability. In light of such, it is arguably only going to be a matter of time until a universal definition of disability be agreed upon and enacted.

The USA, UK, Japan and South Africa all have a common non-discrimination law protecting persons with disabilities. The BLDP definition of disabilities is very similar to that of the UK, USA and the definition of disability contained in the EEA. They all require ones daily life or activities to be limited due to a mental or physical disability, which depression clearly does. In terms of this anti-discrimination law contained in both Section 9 of the Constitution as well as Section 187 of the LRA, it would afford the employee more protection if depression is considered a disability in terms of the EEA, than being considered as an incapacity, as discussed above.

Conclusions And Recommendations

Conclusions

Depression is increasing at an alarming rate and is the second most debilitating illness affecting not only the South African workforce, but also the universal workforce. Despite this, no research is being conducted on this topic and remains unnoticed in South African labour law.

There exists various categories of dismissals in South African labour law such as incapacity, operational requirements and misconduct. As discussed earlier, these categories do not address the problem of depression effectively.

In terms of Sections 189 and 189A, an employee may be dismissed due to an operational requirement. Addressing depression under this category is unsatisfactory. This is because the employer needs to show that a profit can be made by making that employees' position redundant. If an employee is not performing and thus not bringing in a profit to the company, they become a liability. Companies cannot afford to keep employees who are liabilities.

S189A goes further than S189 as it requires the Labour Court to evaluate the dismissal. However, S189A does not apply to a single employee who is being dismissed as it deals exclusively with large scale dismissals. However, neither S189 nor S189A have the procedures in place to deal effectively with an employee who is depressed as their depression is not identified, thus they become liabilities and thus redundant.

In order to dismiss an employee for a misconduct, found in Section 188(1)(a) of the LRA, various factors are examined. These factors include the enquiry that the employee must have been aware or should have been reasonably aware of the rule they broke. The mental element of intention is required at this stage of the enquiry. A depressed employee lacks the intention to knowingly break the workplace rule. Thus any ‘misconduct' committed by a depressed employee cannot be dealt with as such as the intention element is lacking. Therefore dealing with depression as a misconduct is punishing the symptoms without addressing the cause, thus not dealing with depression adequately nor in a dignified manner.

The category of incapacity addresses the issue of depression more so then the other dismissal categories. Incapacity is divided into two sub-categories which are ill health or injury and poor performance. In terms of both, little protection is given to a depressed employee because when depressed, employees perform their work poorly and no matter what accommodations are made, if the problem of depression is not treated, their performance level will not improve. Once again, the symptom is being punished and the cause ignored. Thus, dealing with depression under poor work performance is not affording sufficient protection to the employee nor addressing the growing problem of depression.

Depression as a disability offers both an understanding of the illness as well as the needed protection. The Disability Code provides that alternative accommodation be made for the depressed employee. Although this requirement exists in other dismissal categories, only S187 of the LRA provides added protection by placing disabilities under automatically unfair dismissals and thus allowing for up to 24 months compensation as a result of an unfair dismissal as appose to the usual 12 months.

Placing depression under the heading of disability provides far more protection for the employee with depression as it requires the employer to have exhausted every avenue to avoid dismissal as well as then require the employer to prove that the employee no longer possessed the requirements that were necessary for the inherent requirements of the job. Although it seems that these factors are burdensome on the employer, if the employer has made all necessary and reasonable attempts to accommodate the employee, and the employee still lacks the ability for the inherent requirements of the job, the employer has a substantive reason to dismiss the employee.

The effect is that the employers thus take greater care of the employees and the necessary accommodation required before dismissing. Disabilities are also protected by Section 9 of the Constitution as well as by the Code of Good Practice: Disabilities providing for more comprehensive protection to the employee than any other section.

Categorising depression as a disability would be in line with international legislation and trends. The definition contained in the EEA has the same founding principles as do the definitions abroad of disabilities, and the respective countries all classify depression as a disability.

Recommendations

Research has found that many employees are found to be depressed due to dissatisfaction at work. Depression is only temporarily debilitating, and is treatable. Depressive illnesses have been found to arise from conflict between the manager and the employee. If an intervention is made in the workplace through assessments and monitoring of the employees and encouraging them to report depression, then the root of the problem may be addressed before the onset of full blown depression. Thus, this early detection approach is beneficial to both large and small companies. For a large company, early detection prevents extended sick leave as well as costly employee accommodation having to be implemented. This approach is the best approach for smaller companies. If the problem is detected early, then lengthy sick leave may be avoided as well as the cost of replacement and retraining. Although this may solve the challenge of identifying the problem, a question still remains as to what legal protection the employee is afforded? As the extent of protection given will ultimately depend on which ground for a dismissal depression falls under.

Currently in SA law, there are no national mechanisms in place that aid in identifying psychological disorders in employees in the workplace, and much less that offer any protection regarding those employees. How depression is dealt with in the workplace is unclear. The general consensus is that there is no adequate protection afforded to employees suffering from psychological disorders, most notably depression.

The Depression and Anxiety Support Group of South Africa recommend that every company have a mental health policy to protect employees with depression against dismissals. This policy is to aid in identifying areas to be considered as well as how to handle an employee with a psychological disorder. Research conducted by Burns-Hoffman and Associates found that the management structures in many companies are ill-equipped to deal with psychological disorders in the workplace. This is because it is easier for one to understand the limitations imposed on a person who “suffers the amputation of a limb as opposed to a person who suffers from depression as the former is so physically obvious”.

The Royal College of Psychiatrists also strongly recommended that each company develop a mental health policy to protect affected employees against dismissals. The aim of which is to produce a workplace which tends to prevent depression and encourages prompt and effective treatment as ultimately this reduces the cost of sickness absence from depression.

Therefore, the best approach for labour legislation in SA is to acknowledge depression as a disability, as it falls within the disability definition in the EEA and would keep within international trends. This would provide a depressed employee with protection from dismissals as they would be automatically unfair, until proven otherwise. However, a national early detection policy should be put in place or an incentive for companies to have their own mental health policies in place as that would not only save the company costs on retraining new staff but also the dip in productivity of the depressed employee. Early detection allows the depression to the treated before becoming incapacitating and costing company's money thus improving the country's economy as a whole.

    1. Literature Review

Depression in the South African workplace has been found to be increasing at an alarming rate in every sector. Despite this, there has been very little reported research done dealing specifically with psychological disorders, such as depression, in the Labour Law context in South Africa. Compared with the number of studies in First-World countries, there appears to be little interest in or literature on the topic of psychological disorders in South Africa within the legal context.

Two of the foremost authors of psychology textbooks, Weiten and Barlow both emphasise the debilitating effect that depression has on an individual. Various article writers and scholars' agree. E Kaban states that depression is the second most debilitating illness for employees after heart disease. The Royal College of Psychiatrists has found that depression adversely affects ones ability to work productively. The Pharmaceutical research & Manufacturers of America have found that depression is the leading cause in absenteeism. This is a fundamental finding as absenteeism causes huge losses to companies each year.

All the cases and textbooks offer various solutions to dealing with an employee who is ill. But, as discussed above, this has resulted in no clear laws regarding employees with psychological disorders who can continue to work once treated. No literature has addressed this in any manner or form. It seems that psychological disorders, namely depression, not only remain unnoticed in terms of our law, but also in terms of our literature.

Although there are endless sources on dismissal categories (incapacity, operational requirements, misconduct and automatically unfair dismissals), none of them address this grave problem. Grogan in his books (Dismissal; Dismissal, Discrimination and Unfair Labour Practice; Workplace Law) offers an evaluation of the various dismissal categories but not in the context of an employee suffering from depression.

The same gap exists in Bennet A Guide of the Law of Unfair Dismissals in South Africa, Du Toit et al. Labour Relations Law, Van Niekerk Dismissal for Incapacity and Van Niekerk et al The South African Law of Unfair Dismissals. None of these authors address the issue of depression in the workplace. However, Basson et al. in Essential Labour Law stated that depression may effect the employee and become debilitating. Unfortunately, that was all that was said on the issue.

Swinton recommends that employers become aware of the problem of depression and adapt accordingly. Although, this has not been the case as there has been no reported case law nor research dealing specifically with the issue of a depressed employee.

This research is thus original as no reported literature has attempted to analyse the situation of employees who are suffering from depression when it is obviously a problem in the SA workplace. Although depression in itself is a researched subject and so are the forms of dismissal, the two are yet to be researched on the effects they have on each other. Thus, this body of work is original and very necessary as depression is the second most debilitating disease in the workplace, as well as the loss it is causing the South African economy each year and thus needs to be adequately addressed.

Research Methodology

This body of work will be investigating what depression is and why it is a problem in the South African workplace. The aim is to determine which dismissal category is the most appropriate to deal with depression by determining which category provides the best solution for the depressed employee.

The foremost challenge is the lack of research as there has been very little reported research done dealing specifically with psychological disorders, such as depression, in the Labour Law context in South Africa. Depression, as other psychological disorders, have a negative stigma attached to them, thus depressed persons are hesitant to disclose it making data collection very difficult.

The issue in question will be addressed by reference to research conducted on depression, both locally and abroad, the different dismissal categories found in the LRA as well as the use of statistical results concluded from various studies. The next step is then to evaluate if adequate protection against dismissals is afforded by the various sources of labour law to the employees with depression during the period that they are temporarily unable to perform up to the required standard.

For years, though quantitative research has held the position of being the dominant scientific method, it is not the only method of research. Qualitative methodology is not unscientific as there are specific guidelines which are rigorous and valid. The choice of the method used thus depends on the research question being asked.

The research will be mainly based on a study of the literature. The research methodology that will be employed, will be interpretative. I intend to analyse SA case law, legislation and textbooks. I will also research international laws and foreign law principles to determine international trends and guidelines on dealing with employees with psychological disorders such as depression. I will endeavour to determine the applicability of the principles applied locally as well as internationally in the SA context. The research process thus that will be used will be qualitative as it is interpretive in nature.

I will start by researching the psychological illness of depression. This will be done through the use of textbooks and journal articles. However, my primary focus will be on South African labour law. My aim is thus to explore primary sources of labour law such as the Constitution, various labour law legislations as well as case law. Then I would explore other primary sources of law such as international principles and determine their applicability and relevance to South African Labour Law. I will also use textbooks and journal articles in my research as they are a fundamental source of secondary law. I will gather this information by using libraries and the internet to access legal resource websites.

International law and foreign law are also taken into account when interpreting the various bodies of employment law, as this is required by the Constitution. A conclusion will then be drawn as to whether adequate protection is afforded to the affected employees.

The conclusion that has been drawn from the data collected thus far is that the most comprehensive dismissal method for an employee with depression is to classify depression as a disability. By doing this, the employee is afforded more protection from dismissal as he has a genuine medical justification for his behaviour. Thus he is given the time and/ or adjustments necessary to recover as depression is temporary and able to be controlled through medication. This approach is in line with international trends. The other forms of dismissal, such as incapacity, operational requirements and misconduct, do not deal with the problem of depression adequately as they are applied as an attempt to remedy the symptoms, resulting in an unfair dismissal. The existing procedures are incapable of dealing with an employee who is depressed.