15 July by Edward West
CAPE TOWN – Employees may well experience depression, anxiety and stress during the Covid-19 lockdown and employers need to know that they might be ordered to pay up for ignoring mental health issues of their staff.
This was according to Werksmans Attorneys director Jaques van Wyk and senior associate Andre van Heerden, who said yesterday (tue) that case law had highlighted the importance of acknowledging and attempting to assist employees who suffer with mental health issues in the workplace.
Employers should not ignore mental health issues in the workplace and dismissing an employee who suffered with a mental condition, of which the employer was aware, for misconduct where the conduct was linked with the employee’s mental health, could amount to an unfair dismissal and/or unfair discrimination. Consequences may include reinstatement, awarding of compensation and the awarding of legal costs, Van Heerden and Van Wyk said.
Employers should ensure that they had wellness programmes and/or health policies to enable them to accommodate employees who might be suffering with mental health issues including such issues arising from COVID-19 and its related consequences, they said.
Special attention needed to be given to employees who were predisposed to mental health conditions, and the programmes should also accommodate employees who work from home during the pandemic, they said.
Catherine Clark, the owner of the Harvest Table store company, said no one was immune to stress and uncertainty that the pandemic had produced, and business leaders needed to ensure they did everything to support employees.
She said keeping up employee wellness was more essential than ever, but with work-from-home and hybrid-work strategies being the norm, it was also more challenging than ever.
“Traditional employee wellness programmes that include things like fitness challenges and team builds are not only no longer possible, they also feel irrelevant. Instead, our new environment demands a far richer wellness programme; one that keeps our people safe physically and mentally,” she said.
Van Heerden and Van Wyk cited the Labour Court (LC) case of Jansen v Legal Aid South Africa (2018) as an example of the adverse consequences for employers who did not pay adequate attention to an employee’s mental condition.
The LC found the applicant had not disputed the charges levelled against him that resulted in his dismissal by his employer. The applicant had maintained that his actions were attributed to his depression and his employer’s failure to recognise and deal with his mental condition, which had resulted in his dismissal. During a disciplinary enquiry, the applicant had submitted proof of his mental condition, but his employer chose to ignore it.
“The LC found that, in the circumstances, the employer was under a duty to reasonably accommodate Mr Jansen but had failed to do so. There was a duty to institute an incapacity enquiry instead the employer dismissed Mr Jansen for misconduct.”
The LC ruled that the dismissal was unfair and that the applicant had indeed been unfairly discriminated against on the basis of his disability. The employer was ordered to reinstate applicant, was ordered to pay six months’ salary as compensation for the distress the applicant endured as a result of the unfair discrimination, while costs were also ordered in favour of him.
Source: IOL at https://www.iol.co.za/business-report/economy/employers-may-need-to-pay-up-for-ignoring-mental-health-issues-of-staff-50963712