In 2010, an employee employed with Legal Aid SA was diagnosed and treated for depression and high anxiety. Later that year, the employee was booked off for a week. It was at this stage that the employer became aware of the employee’s health condition. Despite the employee’s diagnosis, his work performance was not affected. However, soon thereafter, his condition deteriorated, resulting in him being absent from work more frequently. In September 2013, he received a final written warning for unauthorised absenteeism and failure to furnish any explanation for his absence. He was subsequently dismissed for similar charges in November 2013.

In November 2013, the employee was charged with:
o Being absent for 17 days between 30 August and 5 November;
o Breaching the employer’s policy by failing to inform his manager of his absence;
o Insolence towards a superior; and
o Insubordination in that he refused to attend to a prisoner as instructed.

The employee admitted all the transgressions, but defended his actions on the basis that his depression caused him to act out of character. Having found him guilty of the charges, Legal Aid SA dismissed the employee.

The employee launched an action at the Labour Court (LC) on two different grounds. Firstly, being a claim that his dismissal was automatically unfair, in that his dismissal related to the employer unfairly discriminating against him on grounds of his disability; Secondly, the employee claimed that he was being unfairly discriminated against as a result of his depression. On behalf of the employee, the clinical psychologist submitted that her evidence was that the employee showed “temporary reactive depression”, which worsened in 2013, and that he was clearly not coping with his work environment. In her expert opinion, he was emotionally drained and unable to function properly in his daily tasks.

The court a quo found that the employee had put up a prima facie case in support of the reasons for his dismissal as alleged and that he had been unfairly discriminated against. The employer was ordered to retrospectively reinstate the employee and to further pay him six months’ salary as compensation.

On appeal, the Labour Appeal Court (LAC) reiterated that an employee claiming an automatically unfair dismissal bears the evidentiary burden to raise a credible possibility that the reason for their dismissal is as alleged. The central question was whether there was a credible possibility that the employee was subject to differential treatment. The LAC held that depression is a form of illness that calls on an employer to invoke the procedures set out in the Code of Good Practice: Dismissal, when addressing an employee’s incapacity.

Depression may play a material factor when charging an employee for misconduct. If it is established that, on account of their depression, an employee’s state of mind as well as their will has been impacted to the extent that they are unable to appreciate the wrongfulness of their actions, then dismissal for reasons of misconduct would be inappropriate and substantively unfair, and the employer ought to approach the issue in terms of incapacity or operational requirements. Alternatively, if an employee’s depression does not impede their cognitive and conative abilities, their depression may diminish their culpability, which will serve as a mitigating factor when deciding the appropriateness of a sanction. Moreover, for an employee to succeed in an automatically unfair dismissal claim based on depression, the question of whether the reason for his dismissal was his depression and if he was subjected to differential treatment on that basis, must be answered. 

In this case, the employee failed to put up a plausible case to accept that his acts of misconduct were caused by his state of depression. The employee could not provide the necessary evidence to establish that his depression formed the basis of his inability to call or send his manager a message informing him of his absence. His psychologist examined him a year before the misconduct and she, likewise, could not determine whether the employee’s state of depression was the underlying reason for his misconduct. The LAC held that it may well be that were it not for his depression, the employee might not have committed the misconduct. 

Nevertheless, he did not present a credible possibility that the dominant cause of the dismissal was his depression. The mere fact that his depression was a contributing factor is not sufficient ground on which to find that there was an adequate causal link between the employee’s depression and his dismissal so as to conclude that depression was the reason for it. 

It is noteworthy that the court repeated the fact that depression would be a consideration when determining the substantive fairness of an employee’s dismissal. However, the employee did not challenge the substantive fairness of his dismissal vis-à-vis the acts of misconduct for which the employer dismissed him.