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[2020] ZALAC 37
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Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37; (2020) 41 ILJ 2580 (LAC); [2020] 11 BLLR 1103 (LAC); 2021 (1) SA 245 (LAC) (21 July 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA3/2019
In
the matter between:
LEGAL
AID SOUTH
AFRICA
Appellant
and
OCKERT
JANSEN
Respondent
Heard:
12 May 2020
Delivered:
21 July 2020
Coram:
Waglay JP, Phatshoane ADJP and Murphy AJA
JUDGMENT
MURPHY
AJA
[1]
The appellant, Legal Aid South Africa, appeals against the judgment
of the Labour
Court (“Mthombeni AJ”) which held that the
respondent’s dismissal was automatically unfair in terms of
section
187(1)(f) of the Labour Relations Act
[1]
(“the LRA”) and that he had been unfairly discriminated
against in terms of section 6 of the Employment Equity Act
[2]
(“the EEA”) on the ground of his suffering depression.
The Labour Court ordered the respondent’s reinstatement
with
full retrospective effect and the payment of compensation equivalent
to six months’ salary.
[2]
Section 187(1)(
f
) of the LRA provides that a dismissal will be
automatically unfair if the reason for the dismissal is that the
employer unfairly
discriminated against an employee, directly or
indirectly,
inter alia
on grounds of disability and/or an
analogous arbitrary ground. Section 6 of the EEA includes a similar
prohibition. The respondent
maintains that the dominant reason for
his dismissal was the fact that he was suffering depression. The
Labour Court, for reasons
we will come to later, agreed. The primary
contention raised by the appellant in this appeal is that the
respondent was in fact
dismissed for misconduct and failed to show
that he was dismissed as a result of any medical condition or that
there was any causal
link between his depression and the misconduct
which led to his dismissal.
The
factual background
[3]
The respondent commenced employment as a paralegal with the appellant
at the George
Justice Centre in March 2007, reporting to Mr. Mark
Nicholls. Generally, he performed well and received favourable
performance
evaluations for most of his employment.
[4]
His mental health problems started in or around 2010, when he was
diagnosed with depression
for the first time, and prescribed
anti-depressants accordingly. In October 2010, the respondent
participated in the appellant’s
Employee Wellness Programme
(“EWP”) for the first time. In November 2011, the
respondent was booked off work by a doctor
for about a week with the
diagnosis of depression with high anxiety for which he was prescribed
anti-depressant medication. He
submitted medical certificates to the
appellant who was thus aware that he suffered from depression on an
ongoing basis.
[5]
During 2012, the respondent was divorced. In September 2012, domestic
violence proceedings
were launched against him by his ex-wife who was
represented by Mr P Terblanche, the appellant’s Justice Centre
Executive
for the George area and the respondent’s colleague
and superior. The respondent believed that Terblanche had a conflict
of
interest and had acted improperly and therefore lodged a grievance
against him. The domestic violence application was settled on
mutually acceptable terms and subsequently withdrawn after the
respondent attended four counselling sessions.
[6]
Correspondence during 2012 reveals that the respondent’s
struggle with depression
was an ongoing problem of which the
appellant remained aware. Thus, in an email dated 29 August 2012 to
Nicholls and others, the
respondent stated “you are aware …
that I am been (sic) treated for depression”. Likewise, the
appellant’s
Labour Relations Manager in an email dated 11
September 2012 wished him a speedy recovery “from the
depression”. Moreover,
the respondent voluntarily submitted to
the EWP for the second time in September 2012, on account of
workplace-related stress.
[7]
The respondent consulted a clinical psychologist, Ms Farre, and
attended four counselling
sessions with her during September and
October 2012. Farre produced a report dated 18 October 2012 in which
she identified the
primary cause of the respondent’s condition
as being Terblanche’s representation of his wife in the
domestic violence
case. She recommended that the issue be resolved
through some form of conflict resolution process. Ms Farre did not
conclude that
the respondent was suffering from chronic, major or
ongoing depression. She did, however, express the view that he
“carries
a lot of frustration and shows symptoms of burnout”.
[8]
The respondent presented this report to the appellant but there was
no follow through
on the Terblanche matter. On 23 October 2012, the
respondent addressed a comprehensive letter to the appellant’s
CEO setting
out his grievance against Terblanche and the effect it
had on his mental health. The appellant took no action.
[9]
The appellant maintains that although the respondent was on
anti-depressant medication,
he continued to discharge his duties
adequately. On a few occasions prior to September 2013, the
respondent was absent from work
without leave and without furnishing
any explanation for such absence. He was given a final warning in
respect of this category
of transgression.
[10]
In 2013, the respondent continued to struggle with depression and
anxiety. However, his performance
was satisfactory, so much so that
he was appointed as one of the appellant’s brand ambassadors in
July 2013. He testified
though that at this stage he had begun to
withdraw socially, his dose of anti-depressants was increased and he
found it difficult
to attend work, with the result that he began not
reporting for work. He informed Nicholls that he was suffering from
stress and
could not cope. His absence in excess of his entitlement
to leave pay was regarded as unpaid leave.
[11]
It is common cause that the respondent failed to report for duty at
work on 17 working days in the
period 30 August 2013 to 5 November
2013. The appellant’s policy is that employees unable to report
for duty due to illness
must notify the appellant at the start of the
workday on which they are unable to work, and must thereafter present
a medical certificate
substantiating the medical condition which
allegedly rendered them unable to work. It was undisputed that the
respondent did not
contact the appellant on any of the days he was
absent indicating that he would not be coming to work. Nicholls
unsuccessfully
tried to contact the respondent by phone on several of
those days.
[12]
On 1 October 2013, Terblanche attended the Commission for
Conciliation, Mediation and Arbitration (CCMA)
at Riversdale, where
he coincidentally encountered the respondent and enquired why he had
been absent. The respondent reacted to
this enquiry by turning his
back on Terblanche, walking away and making a dismissive gesture with
his hands. The appellant regarded
this conduct as an act of insolence
and defiance.
[13]
The respondent was then contacted by Nicholls and Mr Sait, the
Administration Manager at George Justice
Centre, on 2 and 3 October
2013 enquiring about why he had failed to report for duty. The
respondent told Nicholls and Sait that
he was awaiting a dismissal
letter as he no longer wished to work for the appellant.
[14]
The respondent presented one medical certificate accounting for his
absence from work due to depression
on some of the days of his
absence during this period. The medical certificate reflects that the
respondent consulted the doctor
on 16 October 2013, although the
certificate booked him off work from 11 to 18 October 2013.
[15]
Disciplinary proceedings were instituted against the respondent on 7
November 2013. He was charged
with four counts: i) absence from work
for 17 days in the period 30 August to 5 November 2013; ii)
transgression of the appellant’s
policies by failing to inform
his manager of his absence from work; iii) insolence relating to the
occasion at the CCMA in Riversdale;
and iv) refusal to obey a lawful
and reasonable instruction from Nicholls to attend to a prisoner at
Mossel Bay Prison on 10 October
2013.
[16]
In October 2013, the respondent submitted to the EWP for the third
time. He then again consulted Ms
Farre and attended four counselling
sessions with her between 21 November and 12 December 2013. At the
conclusion of these sessions,
Farre addressed a report to Nicholls
informing the appellant that the respondent’s condition had
worsened and he was not
coping with his circumstances at work. She
stated that the respondent showed “intense symptoms of a
reactive depression”
and signs of burnout. Ms Farre described
his symptoms as follows:
‘
[D]iminished
interest in almost all activities, he has no tolerance re
frustration, his mood is greatly affected, his emotional
control is
limited, he has diminished appetite and diminished sleep. His ability
to cope and function is poor and limited. This
state of mind
paralyses his whole day to day functioning.’
[17]
By the time she drafted the report, Farre was aware, in general
terms, of the disciplinary charges.
She recorded that the
respondent’s behaviour reflected his state of mind and noted
that he was avoiding “all possible
stressors” and this
accounted for his absence from work. Farre made the following
recommendations in light of her diagnosis:
‘
I
would strongly recommend that Mr Jansen be granted sick leave for a
considered amount of time. He needs to divorce himself from
work and
try to refocus and prioritize his life. Therapy alone is not enough.
His resources for impulse control seems limited therefore
he needs
timeout. This is a case of great importance. Please take note.’
[18]
In her evidence before the Labour Court, Farre elaborated on her
report and confirmed that the respondent
showed intense symptoms of
temporary reactive depression which had deteriorated in 2013 and that
he was clearly not coping with
his work circumstances. She also said
that he exhibited signs of burnout - “a state of fatigue or
frustration brought about
by devotion to a cause, way of life or
relationship that failed the expected reward”. In her view, the
respondent was no
longer capable of handling his daily commitments
and was so emotionally drained that he could not function properly in
his day
to day tasks.
[19]
As regards the charges of misconduct relating to alleged insolence
towards his superiors, Farre claimed
the respondent was in a state
that he no longer cared and was avoiding every possible demand. His
lack of rational thought processing
resulted in self-destructive
behaviour. He was unable to see how to rectify certain behavioural
patterns. She believed that if
he had been given some time off work
to resolve his issues (as she had recommended in her report), it was
possible that the whole
misconduct scenario that played out could
have been avoided.
[20]
Various managerial employees of the appellant were aware of the
respondent’s condition. For instance,
when Nicholls served the
notice to attend the disciplinary hearing on the respondent
personally at his home, the respondent immediately
told Nicholls that
he was unwell and could not cope with work. He then handed Nicholls a
detailed print-out he had received from
a medical professional
setting out the symptoms for reactive depression. Nicholls read this
document in Jansen’s presence,
and then returned it to him.
[21]
The disciplinary hearing took place on 20 to 21 November and 9
December 2013. The material facts were
largely common cause. The
respondent did not dispute the substance of the allegations against
him. He instead maintained that he
suffered from depression and had
acted out of character. He gave extensive evidence regarding the
history of his condition, the
effects it had on his behaviour and the
medication he had been prescribed. He read into the record a document
setting out the causes,
symptoms and effects of reactive depression.
[22]
Following the completion of the evidence on 21 November 2013, the
hearing stood down until 9 December
2013. By that date, the
respondent had been furnished with Farre’s second report. As
mentioned, Farre sent her report directly
to Nicholls on 4 December
2013, and it was escalated to HR officials by 7 December 2013. The
chairperson of the disciplinary enquiry
refused to admit the report
into evidence because the respondent had not called Farre as a
witness, and thus the admission of a
hearsay report at such a late
stage of the proceedings would be “prejudicial” to the
appellant. The chairperson rejected
the respondent’s
submissions regarding his psychological condition on the basis that
there was no expert medical evidence
to confirm his claims. She also
noted that she was not busy with an incapacity hearing.
[23]
Having disallowed the medical evidence tendered by the respondent,
the chairperson concluded that he
was guilty of all four counts of
misconduct. In its final decision dated 24 February 2014, the
appellant stated:
‘
Having
regard to the evidence that was led before your disciplinary hearing
in totality, there is no concrete evidence before me
to conclude that
your alleged ill-health has the effect you presented. Accordingly,
this defence is dismissed.’
[24]
The respondent’s internal appeal was also rejected. He was
dismissed with effect from 25 February
2014.
The
Labour Court proceedings
[25]
The respondent thereafter referred a dispute to CCMA alleging that
the employer had discriminated against
him “based on my
illness”. On 21 May 2014, the CCMA issued a jurisdictional
ruling in the following terms:
‘
At the start of
the hearing the respondent raised a point
in limine
that
should the applicant be alleging discrimination in terms of section
10 of the Employment Equity Act, as was stated in his
referral made
to the CCMA, the CCMA would lack jurisdiction to arbitrate the
dispute.
It was explained to the
applicant that should this be his submission the CCMA would lack
jurisdiction to arbitrate the matter and
it would need to be referred
to the Labour Court.
The applicant stated he
understood and wished to refer the matter to the Labour Court.
In light of the above the
CCMA lacks the jurisdiction to arbitrate the matter.
Should the applicant wish
to proceed with the matter he needs to refer the dispute to the
Labour Court.’
[26]
After exchanging pleadings, the legal representatives of the parties
concluded and agreed to a pre-trial
minute on 15 December 2015. The
respondent’s statement of claim limited his cause of action to
discrimination. However, in
the pre-trial minute, the parties agreed
on a number of legal issues to be decided by the Labour Court. The
most relevant are set
out as follows:
‘
6.4 Whether the
respondent unfairly discriminated against the applicant on the ground
of disability or an analogous ground within
the meaning of section 6
of the EEA;
6.5 Whether the reason
for the applicant’s dismissal was that the respondent unfairly
discriminated against the applicant
on the ground of a disability
and/or an analogous arbitrary ground and, as such, whether the
applicant’s dismissal was automatically
unfair within the
meaning of section187(1)(f) of the LRA;
6.6
In the
alternative
, and only in the event that the court should find
that the applicant’s dismissal was not automatically unfair,
whether the
applicant’s dismissal was substantively and/or
procedurally unfair within the meaning of section 188 of the LRA. In
this
regard, whether the court should exercise its discretion under
section 158(2)(a) of the LRA to determine this part of the dispute
between the parties.’
[27]
The alternative prayer in paragraph 6.6 of the pre-trial minute in
effect requested the Labour Court
to exercise its discretion in terms
of section 158(2) of the LRA which in relevant part reads:
‘
If at any stage
after a dispute has been referred to the Labour Court, it becomes
apparent that the dispute ought to have been referred
to arbitration,
the Court may –
(a) stay the proceedings
and refer the dispute to arbitration; or
(b) if it is expedient to
so, continue with the proceedings, in which case the Court may only
make any order that a commissioner
or arbitrator would have been
entitled to make.’
[28]
Paragraph 6.7 of the pre-trial minute sets out the issues for
determination in regard to whether the
dismissal was substantively
and/or procedurally unfair in the event that section 158(2) applied.
In particular, the parties asked
the Labour Court to determine
inter
alia
whether the appellant gave sufficient regard to the applicant’s
mental condition as a mitigating factor in deciding that
dismissal
was an appropriate sanction and whether the dismissal was
substantively or procedurally unfair because the appellant
failed to
comply with items 10 and 11 of the Code of Good Practice:
Dismissals
[3]
governing
dismissal for ill health.
[29]
At the commencement of the trial, the Labour Court made certain
procedural rulings, which had an impact
on the evidence presented.
Firstly, it held that the respondent had not pleaded a claim based on
an unfair dismissal, and that
the appellant was accordingly only
required to answer to allegations of automatically unfair dismissal
and discrimination. After
an exchange with Mr Leslie (counsel for the
respondent) on the issue, the Labour Court ruled that it would not
entertain a claim
of unfair dismissal. It stated:
‘
My
view, after perusing the pleadings, is that that claim has not been
pleaded, and I think Mr Du Preez (counsel for the appellant)
is
correct that it cannot be pleaded in the pre-trial minute. In the
statement of case, the applicant concedes that the charges
on which
he has been found guilty are very serious, but his defence is that
all this happened due to his disability. There is nowhere
where I
find that his dismissal was substantively and procedurally unfair.
That has not been pleaded.’
[30]
This ruling was to the effect that the respondent was precluded from
seeking relief in terms of section
158(2) of the LRA, in the event
that an automatically unfair dismissal was not proved, because he had
not sought that relief in
his statement of claim. There is no
cross-appeal against that ruling before us, nor did the respondent
apply to the Labour Court
to amend his statement of claim to bring it
into line with paragraphs 6.6 and 6.7 of the pre-trial minute.
[31]
The Labour Court also ruled that appellant was obliged to commence
with the adducing of evidence. This,
the appellant submits, was a
misdirection. Ordinarily, and save where specific procedural
enactments provide to the contrary, the
party bearing the onus in
respect of a specific issue must first call evidence on that issue,
and only thereafter is the opposing
party required to present its
case on the issue. Faced with the Labour Court’s ruling, the
appellant had to commence with
the adducing of evidence, even though
it did not bear the onus. It opted simply to close its case because
it thought it unfair
to expect it to present evidence on an issue
where the onus rested on respondent without even knowing what
respondent’s evidence
on that issue was. There is probably
merit in the appellant’s complaint about this ruling. However,
for reasons that will
become apparent, nothing turns on the question.
[32]
The only witnesses to testify before the Labour Court were the
respondent and Ms. Farre. At the close
of their evidence, the
appellant applied for absolution from the instance on the grounds
that the respondent had failed to make
out a
prima
facie
case of automatically unfair dismissal or discrimination. The Labour
Court rejected the application and held that the reason for
the
dismissal was that the appellant had discriminated against the
respondent on the grounds of his mental condition. It accepted
that
the evidence confirmed that the respondent suffered from depression
and that dismissal for that reason would amount to discrimination
on
grounds of disability or an analogous ground.
[4]
The learned judge then reasoned as follows:
‘
From this
perspective, in my view, the respondent would not have dismissed the
applicant had the latter not suffered from his condition.
His conduct
as alleged by the employer and for which he was dismissed was
inextricably linked to his mental condition…The
most probable
inference to be drawn from the uncontested evidence led by the
applicant and Farre is that the probable cause for
the applicant’s
dismissal was his mental condition.
I am convinced that the
applicant has led adequate evidence to indicate that he had suffered
from depression and the respondent
was, throughout, aware of his
mental condition. I am, therefore, satisfied that the applicant has
made out a
prima facie
case and, thus, discharged the
evidential burden to show that the reason for his dismissal was on
account of his mental condition.
On the contrary, the respondent has
failed to discharge the onus to prove the reason for dismissal was
permissible….I am
therefore satisfied that the applicant has
raised a credible possibility that the dominant reason for the
dismissal was his mental
condition.’
[34]
The Labour Court held that in light of the appellant’s failure
to lead evidence, and in terms
of the decision of this court in
Kroukam
v SA Airlink (Pty) Ltd
[5]
(discussed below), the respondent’s evidence about his
depression was sufficient to give rise to a credible possibility that
an automatically unfair dismissal had taken place. It relied on this
conclusion to hold that the dismissal was automatically unfair
under
the LRA and at the same time amounted to unfair discrimination under
the EEA, and it granted relief accordingly.
Evaluation
[35]
An applicant seeking to establish that a dismissal is automatically
unfair on any of the grounds listed
in section 187(1) of the LRA must
meet the requirements of causation as articulated in
SA
Chemical Workers Union & others v Afrox Limited
[6]
as follows:
‘
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 s 187(1)(
a
).’
[36]
The evidentiary burdens regarding the issues arising in an alleged
automatically unfair dismissal were
defined in
Kroukam
v SA Airlink (Pty) Ltd
[7]
as follows:
‘
In my view,
section 187 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 s 187 for constituting
an automatically
unfair dismissal.’
[37]
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. In the present case: is there a credible
possibility that the respondent was subject
to differential treatment
on the prohibited ground of depression? If that credible possibility
is established then the employer,
in order to prevail, needs to
produce sufficient evidence rebutting that credible possibility or
offering fair justification for
the differential treatment.
[38]
The respondent does not deny the misconduct with which he was
charged. It is common cause that he committed
the alleged
transgressions. He admitted his absence from work for the 17 day
period; transgression of the applicable workplace
regulations in
failing to inform his manager of his absence from work; acting
insolently on the occasion at the CCMA in Riversdale;
and refusing to
obey a lawful and reasonable instruction regarding the Mossel Bay
Prison visit on 10 October 2013. The respondent’s
admissions
are cogent evidence that the reason for his dismissal was misconduct.
[39]
The respondent maintains that all this misconduct, committed over a
period of time, was caused by his
depression. He essentially asserts
that his depression occluded his ability to conduct himself in
accordance with an appreciation
of the wrongfulness of his misconduct
and that he had no self-control. Had he not been depressed, he
argues, he would not have
misconducted himself. Accepting that as
true, the question remains whether the dominant or proximate reason
for his dismissal was
his misconduct or his depression. The
respondent wishes us to equate the two and claims they are causally
inextricably interlinked.
[40]
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. The approach
to be followed will depend
on the circumstances.
[41]
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.
[8]
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 attempt first 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.
[42]
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.
[43]
Conative ability is a question of fact and an employee denying
conative ability, as the respondent
in effect does, 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. As explained, 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. That much
is trite.
[44]
However, for an employee to succeed in an automatically unfair
dismissal claim based on depression,
the question is different. Here
the enquiry is not confined to whether the employee was depressed and
if his depression impacted
on his cognitive and conative capacity or
diminished his blameworthiness. Rather, it is directed at a narrower
determination of
whether the reason for his dismissal was his
depression and if he was subjected to differential treatment on that
basis. Here too,
the employee bears the evidentiary burden to
establish a credible possibility (approaching a probability) that the
reason for dismissal
was differential treatment on account of his
being depressed and not because he misconducted himself.
[45]
The evidence in this case, convincingly shows that the respondent was
depressed. He was taking anti-depression
medication, his personal
circumstances and working life were fraught; and Ms Farre’s
reports and evidence confirm as much.
However, the respondent failed
to adduce cogent evidence, whether medical or otherwise, showing that
his acts of misconduct were
caused by his depression or that he was
dismissed for being depressed. Farre, during her testimony, could not
say whether the depression
caused the specific acts of misconduct
leading to the respondent’s dismissal. She had not consulted
the respondent for approximately
one year prior to him committing the
misconduct and thus could not testify as to his mental state or
health at the time of each
incident of misconduct. She conceded that
the notice to attend the disciplinary hearing could have triggered or
caused the reactive
depression which she observed in her second round
of consultations with him. She also testified that, in her opinion,
the respondent
appreciated the difference between right and wrong and
that he was capable of acting in accordance with such appreciation.
[46]
Accepting thus that the respondent was depressed and had been
suffering from depression since 2011,
he nonetheless remained
reasonably functional and able to carry out his duties throughout
most of that period. He was not wholly
incapacitated. Moreover, the
appellant’s policy was merely to require employees compelled to
take sick leave to advise the
appellant of the fact that they would
not be reporting for duty. All the respondent was required to do was
to make a phone call
or send an email. The evidence does not show
that the respondent was debilitated to the extent that he was unable
to do these things.
Furthermore, on 1 October 2013, he was
sufficiently well to attend the Riversdale CCMA and had an
opportunity to explain his illness
to Terblanche. Instead, he was
antagonistic.
[47]
In the circumstances, the appellant had a legitimate basis for
imposing discipline, the respondent’s
depression
notwithstanding. That being the case, the proximate reason for
disciplining the respondent was his misconduct and not
the fact that
he was depressed. He was relatively capable and knowingly conducted
himself in contravention of the rules of the
workplace. Discipline
was justifiably called for.
[48]
It may well be that but for his depression factually (
conditio
sine qua non
) the respondent might not have committed some of the
misconduct; but, still, he has not presented a credible possibility
that the
dominant or proximate cause of the dismissal was his
depression. The mere fact that his depression was a contributing
factual cause
is not sufficient ground upon which to find that there
was an adequate causal link between the respondent’s depression
and
his dismissal so as to conclude that depression was the reason
for it. The criteria of legal causation, it must be said, are based
upon normative value judgments. The overriding consideration in the
determination of legal causation is what is fair and just in
the
given circumstances. One must ask what was the most immediate,
proximate, decisive or substantial cause of the dismissal. What
most
immediately brought about the dismissal? The proximate reason for the
respondent’s dismissal was his four instances
of misconduct. It
was not his depression, which at best was a contributing or
subsidiary causative factor.
[49]
Thus, the respondent did not produce credible evidence, and
accordingly has failed to prove, either
that the treatment accorded
to him by appellant in any way differed from the treatment accorded
to other employees, or, more importantly,
that the reason for any
such alleged differential treatment was his condition of depression.
The respondent has not established
a credible possibility that his
dismissal was automatically unfair. Nor has 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 to
which he admitted in the
disciplinary enquiry and recorded as common
cause in the pre-trial minute.
[50]
As already discussed, but worthy of repeating, that is not to say
that the depression of an employee
is of insignificant relevance.
Depression, sadly, is a prevalent illness in the current environment.
Employers have a duty to deal
with it sympathetically and should
investigate it fully and consider reasonable accommodation and
alternatives short of dismissal.
[9]
In addition, where depression may account in part for an employee’s
misconduct, depending on the circumstances and the nature
of the
misconduct, dismissal may not be appropriate. However, for the
reasons explained, in this instance, there was no proper
claim of
substantive unfairness before the Labour Court which is the subject
of an appeal or cross-appeal before us. Our jurisdiction
in this
appeal is constrained by the pleadings.
[51]
For the reasons discussed, the Labour Court accordingly erred in
finding unfair discrimination and
that the dismissal was
automatically unfair.
[52]
This is not a case in which fairness justifies an award of costs.
[53]
In the premises, the appeal is upheld. The orders of the Labour Court
are set aside and substituted
with an order dismissing the
application.
_______________
JR
Murphy
Acting
Judge of Appeal
I
agree
______________
B
Waglay
Judge
President
I
agree
_____________________
M
Phatshoane
Acting
Deputy Judge President
APPEARANCES:
FOR
THE APPELLANT:
Adv A Oosthuizen SC
and Adv T Du Preez
Instructed
by: CK Attorneys
FOR
THE RESPONDENTS: Adv
GA Leslie SC
Instructed
by: Cliffe Dekker Hofmeyr
[1]
Act 66 of 1995.
[2]
Act 55 of 1998.
[3]
Schedule
8 of the LRA.
[4]
New
Way Motor & Diesel Engineering (Pty) Ltd v Marsland
(2009)
30 ILJ 2875 (LAC) at para 24.
[5]
[2005]
12 BLLR 1172
(LAC).
[6]
(1999)
20 ILJ 1718 (LAC) para 32.
[7]
[2005] 12 BLLR 1172
(LAC) at para 28.
[8]
Schedule
8 of the LRA.
[9]
Items
10 and 11 of
Schedule
8 of the LRA.