In the above circumstances, what are the requirements to be met for legal causation to have been established?
How does an employer deal with an employee in circumstances where such employee’s depression plays a role in the misconduct committed by such employee?
When an employer has to deal with an employee who is allegedly depressed, how should the conative ability and cognitive capacities of such employee be dealt with?
In the scenario where an employee suffers from depression and he or she alleges that he or she was dismissed on this basis, what is the content of the evidentiary burden on such employee when he/she relies on s187(1)(f) of the LRA?
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The labour appeal court, in Legal Aid South Africa v Jansen (2020) 31 SALLR 140 (LAC); [2020] 11 BLLR 1103 (LAC), adopted the following approach to the above issues:
- an applicant seeking to establish that a dismissal is automatically unfair on any of the grounds listed in s187(1) of the LRA must meet the requirements of causation as articulated in SA Chemical Workers Union v Afrox Ltd (1999) 20 ILJ 1718 (LAC); [1999] 10 BLLR 1005 (LAC), as follows:
‘[32] The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the “main” or “dominant”, or “proximate”, or “most likely” cause of the dismissal. … It is important to remember that at this stage the fairness of the dismissal is not yet an issue … Only if this test of legal causation also shows that the most probable cause for the dismissal was only participation or support of the protected strike, can it be said that the dismissal was automatically unfair in terms of s187(1)(a).’
- the evidentiary burdens regarding the issues arising in an alleged automatically unfair dismissal were defined in Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) as follows:
‘[28] In my view, s187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s187 for constituting an automatically unfair dismissal.’
- in accordance with this scheme, it is incumbent on an employee, alleging that the reason for his dismissal was discrimination on prohibited grounds, to produce sufficient evidence raising a credible possibility that the dismissal amounted to differential treatment on the alleged ground
- the question to be determined was whether or not, in casu, there was a credible possibility that the employee had been the subject to differential treatment on the prohibited ground of depression – if that credible possibility was established, then the employer, in order to prevail, needed to produce sufficient evidence rebutting the credible possibility or offering fair justification for differential treatment
- in the first instance, depression must be looked at as a form of ill-health. As such, an incapacitating depression may be a legitimate reason for terminating the employment relationship, provided it is done fairly in accordance with a process akin to that envisaged in Items 10 and 11 of the Code of Good Practice: Dismissal (Schedule 8 of the LRA)
- if an employee is temporarily unable to work for a sustained period due to depression, the employer must investigate and consider alternatives short of dismissal before resorting to dismissal. If the depression is likely to impair performance permanently, the employer must first attempt to reasonably accommodate the employee’s disability. Dismissal of a depressed employee for incapacity without due regard and application of these principles will be substantively and/or procedurally unfair
- depression may also play a role in an employee’s misconduct. It is not beyond possibility that depression might, in certain circumstance negate an employee’s capacity for wrongdoing. An employee may not be liable for misconduct on account of severe depression impacting on his state of mind (cognitive ability) and his will (conative ability) to the extent that he is unable to appreciate the wrongfulness of his conduct and/or is unable to conduct himself in accordance with an appreciation of wrongfulness. Should the evidence support such a conclusion, dismissal for misconduct would be inappropriate and substantively unfair, and the employer would need to approach the difficulty from an incapacity or operational requirements perspective. Alternatively, where the evidence shows that the cognitive and conative capacities of an employee have not been negated by depression, and he is able to appreciate the wrongfulness of his conduct and act accordingly, his culpability or blameworthiness may be diminished by reason of the depression. In which case, the employee’s depression must be taken into account in determining an appropriate sanction. A failure to properly take account of depression before dismissal for misconduct could possibly result in substantive unfairness
- conative ability is a question of fact and an employee denying conative ability, as the respondent in effect did, bears an evidentiary burden to prove the factual basis of the defence. To hold otherwise would unduly undermine the managerial prerogative of discipline where misconduct is committed by employees suffering all manner of mental difficulties such as depression, anxiety, alcoholism, grief and the like. The fact that an employee was depressed, anxious, grieving or drunk at the time of the misconduct (but not entirely incapacitated thereby) is most appropriately viewed as a potential mitigating factor diminishing culpability that may render dismissal for misconduct inappropriate or may require an incapacity investigation before dismissal
- on the facts of the case, it was found that the employee did not establish a credible possibility that his dismissal had been automatically unfair, nor had he shown, on a balance of probabilities, discrimination on a prohibited ground under the EEA. The more probable reason for his dismissal was the misconduct which he had admitted to in the disciplinary enquiry and recorded as common cause in the pre-trial minute
