Claire Turner, provincial manager at Consolidated Employers Organisation, guides employers on mental health and employment relationships.
As a result of the current pandemic and other factors, many employees struggle with physical and mental illness.
In the recent case of Pahlanga vs The Petroleum Oil and Gas Corporation of South Africa (PetroSA) Case no C564/2019, 9 July 2021), the Labour Court had to consider whether the dismissal of an employee for misconduct was justified in circumstances where the employee had alleged his unauthorised absenteeism from work was linked to mental illness.
The applicant, a senior process controller, was dismissed by the respondent for being absent without leave and not informing his supervisor of the reason for his absence. The applicant occupied a pivotal operational role in the refinery plant where he worked.
If a senior process controller (SPC) were absent, another SPC would have to be arranged, and the company would incur additional overtime costs. The applicant was absent from work from the 10th of July 2017 and only returned to work on the 1st of August 2017 after the employer had written him a letter instructing him to return to work. Upon his return, he requested a voluntary enrolment with the employee assistance program.
The respondent then convened a disciplinary enquiry where the applicant was charged with unauthorised absence, which the applicant pleaded guilty to, but in mitigation, the applicant led evidence that he felt uncomfortable at work and the interpersonal relations in the production section were poor, which affected him psychologically.
The applicant also believed that there were people trying to dismiss him, and he was being victimised. But despite all these allegations, the applicant failed to provide reasons for his unauthorised absence.
The chairperson at the enquiry decided to send the applicant to a professional clinical psychologist to see whether any psychosocial conditions affected the applicant, which could have resulted in his absence from work.
Even though the clinical psychologist admitted that the applicant was experiencing some depression and anxiety, in the report, nothing pointed to any psychological reasons that would result in the applicant being absent from work. The chairperson’s sanction was a dismissal.
The applicant referred an unfair dismissal case to the Bargaining Council. The commissioner agreed that the applicant was guilty of misconduct and that the dismissal was an appropriate sanction.
The applicant contended that the commissioner had erred by evaluating the case as a dismissal for misconduct and failed to take note that the chairperson at the enquiry didn’t make any further inquiries after considering the report issued by the clinical psychologist. The matter was taken to the Labour Court, and the applicant argued “that an employer has a duty to investigate the impact of a real possibility of ill health on the employment relationship. Further, where there is such a possibility, the investigation must be completed, and any contemplated disciplinary steps stood over until that is done.”
The Labour Court disagreed and said that it is clear in law that the employer needs to prove that the dismissal is indeed fair when looking at the reasons for the dismissal. However, suppose the employee believes that there were ulterior motives, in that case, the employee will need to lead evidence showing that the alleged ulterior motive was indeed the reason for the dismissal and, in so doing, leading to the reason for the dismissal being unfair under section 187 of the Labour Relations Act.
Therefore, if an employee believes that their actions can be explained because they are suffering from a physical or mental incapacity, they must lead such evidence to prove that it is not their fault. The Labour Court dismissed the applicant’s review application.
As time goes by, we should expect to see more cases like this, and employers need to be more aware of mental health and its impact on the employment relationship. But an important point to take away from this case is that employees still bear the onus to prove that their physical or mental health was the direct cause of the misconduct.