The Labour Appeal Court in the matter of Legal Aid South Africa vs Ockert Jansen (2018) 39 ILJ 2024 (LC) considered the impact of depression on an employee who was disciplined for acts of misconduct.

The facts of the matter are essentially the following:

Mr Jansen was employed as a paralegal in the George Justice Centre from 2007 until his dismissal in 2014. He was diagnosed with depression in 2010. Mr Jansen received treatment and was assisted through the employee wellness programme.

Mr Jansen went through a divorce in 2012 as well as domestic violence proceedings instituted by his ex-wife who was represented by one of his colleagues and superiors during the proceedings. Mr Jansen was aggrieved by his colleague having represented his ex-wife during the legal proceedings and lodged a grievance against him which ultimately was not actioned.

Notwithstanding his depression Mr Jansen’s performance was satisfactory and he was appointed a brand ambassador in July 2013.

Since being diagnosed with depression, Mr Jansen utilised his sick leave entitlements and ultimately exhausted them whereafter he was granted unpaid leave. The employer’s policy required employees to notify the employer at the start of the work day in the event of unplanned absence and to provide a medical certificate in due course.

Mr Jansen was issued with a final written warning for absences without leave and without providing an explanation for the absences prior to September 2013. Between 30 August 2013 and 5 November 2013 Mr Jansen was absent without leave for 17 days. He failed to notify the employer that he would be absent and also failed to provide justification for his absence. On various days of absence his manager attempted unsuccessfully to contact him.

It appears that the straw that broke the camels back was an incident where Mr Jansen’s colleague bumped into him at the CCMA on one of the days of absence without leave. When his colleague approached him to ascertain why he was absent he turned, walked away and made a dismissive gesture towards his manager. Thereafter management contacted Mr Jansen wo informed them that he did not want to continue working there and that he was waiting for his dismissal letter.

Mr Jansen was charged with 4 counts of misconduct relating to his failure to attend work and his conduct towards colleagues. It is not in dispute that Mr Jansen committed the misconduct in question.

Mr Jansen’s stance was that although he admitted the conduct he argued that his behaviour stemmed from his depression. Simply put if it wasn’t for him having depression he would not have behaved in such a manner. Ultimately he was found guilty of the charges against him and dismissed.

Mr Jansen’s argument found favour with the Labour Court which found that he had been automatically unfairly dismissed based on suffering from depression.

The Labour Appeal Court has however now overturned the decision of the Labour Court and dismissing his claim. The Labour Appeal Court sets out a useful exposition of the legal tests applicable.

It is acknowledged that an employee’s mental wellbeing and their behaviour may be influenced by various factors such as suffering from depression. In these circumstances an employer must treat the situation with sensitivity and provide assistance or accommodation where possible in the event that the situation results in ill health or incapacity. It is further acknowledged that these factors may be relied upon as factors in mitigation by an employee found guilty of misconduct.

However, the Labour Appeal Court found that there was no evidence to suggest that Mr Jansen was not able to appreciate the wrongfulness of his conduct or act in accordance with such appreciation. Based on the evidence presented Mr Jansen was unable to persuade the Labour Appeal Court that he was subjected to unfair differential treatment based on his condition and thereby automatically unfairly dismissed.

The full judgement can be downloaded here