In more detail
Managing underperformance is challenging at the best of times, but mental health issues can make it far more complicated. Depression and other conditions are becoming increasingly prevalent, affecting not only an employee's well-being but also their ability to meet expectations. Abrupt dismissal may seem like a quick fix, yet it risks serious repercussions and overlooks genuine struggles. Employers need a balanced approach that respects both operational priorities and the reality of mental illness, ensuring fair treatment through empathy, open dialogue, and reasonable accommodations.
The Labour Appeal Court has determined that dismissing an employee for mental illness may be considered unfair and rightly so. The LAC has commented that with "the stresses and pressures of modern day life being what they are, depression is common in the workplace. Employers from time to time will need to manage the impact of depression on an individual employee's performance." When an employee discloses a mental illness, employers should treat it just like any other medical condition, as a form of ill-health requiring appropriate support.
Challenges arise when employees disclose their mental illness only after a performance improvement process has begun. The process itself can aggravate or worsen their mental health challenges. So, how should employers respond?
In Legal Aid South Africa v Jansen, the court was required to determine if the dismissal of an employee was due to the employee suffering from depression. Ultimately, the court found that the dismissal was due to the employee's own misconduct and could not be attributable to his depression. In arriving at this decision, the court highlighted that "employers have a duty to deal with [depression] sympathetically and should investigate it fully and consider reasonable accommodation and alternatives short of dismissal." This approach should be adopted during the performance management process. It is important that employers understand that mental illness may negate an employee's capacity for wrongdoing. In other words, it is possible that an employee is not liable for misconduct if the mental illness impacts on the employee's state of mind (cognitive ability) and his will (conative ability). In this case, the employee is not able to appreciate the wrongfulness of his or her conduct. In these circumstances, dismissal for misconduct is not appropriate. Instead, the employer can consider incapacity or operational requirements as an appropriate and alternative vehicle.
Employers do not need to stop the performance management process. They should first assess whether the employee's mental illness explains the poor performance, which may involve speaking with the employee and possibly seeking more information from medical professionals. These details can help refine the process to meet both parties' needs. If it emerges that mental illness is not the main driver of underperformance, employers can continue with the existing approach. Provided they follow a fair procedure, a mental health diagnosis should not deter employers from addressing poor performance.
Creating a workplace culture which encourages employees to speak up when dealing with mental health issues may also assist with this process. When employees feel comfortable enough to inform their employer of the difficulties they are facing without fearing adverse consequences, employers can take steps sooner to assist employees and avoid the more daunting performance management processes. Employers can assist employees to normalise mental illness by providing information to employees and offering an employee assistance program.
To answer the initial question posed, employers should approach claims of mental illness with understanding and sympathy, irrespective of the timing of the claims. Employers may continue with the process in place, after considering the information provided and determining that the employee's mental illness is not the true cause for their poor performance.
Employers who prioritise empathy, fairness and open communication can address underperformance effectively without neglecting the legitimate challenges of mental illness. By thoroughly investigating claims, offering reasonable accommodations and encouraging employees to seek help early, organisations can maintain operational standards and create a supportive culture. This balanced approach not only protects employees' well-being but also reduces legal and reputational risks, ultimately benefitting both the workforce and the organisation's overall performance.
