Mental health has become a prevalent issue in the workplace and employers need to recognise mental health as a legitimate concern. This also means that employers have the task of developing appropriate mental health promotion policies and procedures and the critical challenge of early intervention, treatment and reintegration of an employee into the workplace where possible. Essentially, employees that suffer from depression and other mental health disabilities need to be protected from unfair discrimination and an employee may not be dismissed solely based on a mental disability such as depression.

Mental health issues could have an impact on what appears to be misconduct and / or poor performance and could be difficult for the employer to distinguish between an underlying mental health issue and issue related to performance and conduct. Where these challenges present itself, an employer must take care to ensure that the situation is addressed appropriately and confidentially.

Where incapacity procedures are considered, the procedures as set out in the Code of Good Practice: Dismissal (Schedule 8 of the Labour Relations Act) should be applied as in other disability cases. In certain instances, medical boarding may be considered where the employee is incapacitated permanently.

The Labour Appeal Court in Pharmaco Distributiion (Pty) Ltd v EWN (2017) 38 ILJ 2496 (LAC) the court dealt with whether an employee who suffers from a bipolar disorder can be forced to undergo a medical examination where the employee has consented to undergo such medical examination in the employment agreement.

The brief facts of the case are that the employee was charged with insolence and insulting behaviour, willful refusal to carry out a lawful instruction or to perform her duties, intimidation of fellow employees and damaging the reputation of the employer due to the fact that she had raised a few queries with regards to her commission calculations. The employee was subsequently issued with a final written warning.

The employee then mentioned to her employer that she was suffering from bipolar depression and as a consequence, the employee was placed on suspension and issued with a letter to the effect that her behavior was concerning and she was instructed to attend a medical examination with a psychiatrist, but when the employee refused to attend the medial examination, she was dismissed.

The employee argued that the instruction to take a medical examination was unlawful and that it constituted unfair discrimination based on a disability which amounted to an act of harassment. The employer argued that the instruction was lawful and reasonable on the basis that the employee had consented to undergo a medical examination in her employment agreement and that her recent behavior had raised concerns as to whether she was mentally stable to cope with the demands of the job.

The court therefore held that the dismissal of the employee on the basis that the employee has refused to undergo a medical examination was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995, based on the fact that the employee could not have been required to undergo such medical examination for her bipolar condition.

The court decided that an employer is not entitled to rely on the fact that an employee has consented to medical testing as a tactic to avoid the prohibition of medical testing as provided for in Section 7(1)(a) and (b) of the EEA.

The court further held that the employer’s conduct of singling out the employee to undergo a psychiatric examination on account of her medical condition further constituted unfair discrimination in terms of section 6 of the EEA.

The employee also had a claim for injuria in relation to damages, the Court held that the claims under the LRA and the claim under the EEA related to the impact on the employee’s dignity in so far as the act of unfair discrimination against her on grounds of her disability was concerned. The court concluded that an award for non-patrimonial damages together with compensation in favour of the employee in respect of the same conduct would not be just or equitable, the damages for injuria was accordingly set aside and the employee was awarded R285 000 in compensation.

The importance of the above case is that although the employee’s employment contract indicated that she had consented to a medical examination, it is crucial for employers to obtain legal advice from expert in labour law in order to understand what is permissible in law and to address the matter in accordance with prevailing laws and to develop sound HR policies and procedures for dealing with mental health issues.

Failure to do so could result in serious damages claims on the basis of discrimination, unfair dismissal and even automatically unfair dismissal where employees claim that that their dismissal was on account of discrimination based on disability.

Author
(Ntombi Baloyi – Candidate Attorney)