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It’s all in the head

By Jose Jorge, Director and Steven Adams, Senior Associate, Employment, Cliffe Dekker Hofmeyr


There is a steady increase in the diagnosis of mental illness in the workplace. Mental illness still carries a social stigma which may make sufferers reluctant to seek help. Unlike other illnesses mental illness may not manifest physically and is harder to detect. This often leads to the suspicion that employees are malingering when diagnosed with a mental illness. 


Mental illness may have a profoundly negative effect on workplace relationships. Where an employer is aware that an employee suffers with mental health issues, it must consider the potential impact of the illness on the employee and on the workplace and apply the appropriate incapacity process. The employer failed to do this in Jansen v Legal Aid South Africa (C678/14) [2018] ZALCCT 17 (16 May 2018).  


In 2010 Jansen was diagnosed with major depression. From there his downward spiral continued. In 2011 he was diagnosed with depression and high anxiety. In 2012 Jansen separated from his wife. His direct manager, a Mr Terblanche, represented his wife in the divorce proceedings. Unsurprisingly, Jansen felt betrayed by this. It further aggravated his poor mental state. In late 2012 Jansen’s clinical psychologist advised his employer of his issues at work and warned that these issues required resolution as soon as possible. Jansen himself had appraised his employer of his condition. Jansen was regularly absent from work. He also began acting erratically. His behaviour was seen as insolent and insubordinate. In this period, he was diagnosed with manic depression. 


In November 2013, Jansen’s employer had had enough. It “charged” him with misconduct. The chairperson rejected Jansen’s explanation that his behaviour was due to his mental illness on the basis that there was no medical evidence corroborating this, and that the enquiry related to misconduct and not incapacity. She refused to consider medical reports showing that Jansen was on the verge of an emotional breakdown. 


On 24 February 2014 Jansen was dismissed. This worsened his mental state. Jansen was eventually evicted from his rental accommodation. When the matter was finally heard in 2018 he was homeless. 


Jansen approached the Labour Court contending that his dismissal was automatically unfair as it related to his disability, and that it was an act of unfair discrimination on a listed ground. In court, the employer chose not to lead any evidence. It contended that Jansen had not made out a prima facie case and applied for absolution from the instance. This proved to be a fatal decision. 


The Labour Court held that where the onus rests on a defendant that, as a rule, absolution from the instance would not be granted. The court found that it would not be in accordance with the objectives of the Labour Relations Act to place undue technical hurdles before a lay applicant. Although Jansen may not have pleaded that he was dismissed because of his mental condition, he had throughout referred to his condition. His employer knew what case it was expected to meet. 


The court found that Jansen’s depression was the actual cause of his dismissal. He had provided his employer with proof of his illness. It had declined to accept this proof without challenging it. Jansen’s employer knew that he had a disability. It was under a duty to reasonably accommodate him. Instead of dismissing Jansen for misconduct, it had a duty to institute an incapacity enquiry. 


The court enunciated the principles for determining an automatically unfair dismissal. Firstly, would the dismissal have occurred if Jansen did not suffer from a mental illness? If the answer was yes, then the dismissal was not automatically unfair. If not, the question was whether Jansen’s mental illness was the most likely cause of the dismissal? If this inference could be drawn then the dismissal was automatically unfair. The court found Jansen’s dismissal to be automatically unfair and constituted unfair discrimination. The court ordered retrospective reinstatement (just less than five years’ back-pay).


Employers should exercise caution when dealing with disciplinary issues that may be related to mental illness. They should take care to identify whether an employee’s conduct is due to his or her mental illness. If so, the matter should be dealt with as one of incapacity rather than misconduct. 


Gillian Lumb, from Cliffe Dekker Hofmeyr's Employment Practice, acted for Ockert Jansen in this matter.

*Jansen’s employer has appealed the judgment.


For more information contact Jose Jorge at  or Steven Adams at 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr







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