Depression and Dismissal for Incapacity

Once properly diagnosed, depression constitutes a disease — one much like any other chronic and, at times, debilitating disease. There is no instant cure for depression, but there are a variety of treatments that can go some length in addressing an employee’s depression. Major depression comes in a number of forms and guises, but the bottom line is that an employer cannot be expected to keep a severely depressed (in other words, a severely ill) person in service indefinitely. The normal rules in respect of dismissal for incapacity (ill health) will apply in such cases.

One of the most difficult questions in this context would be whether the depression can be seen as a permanent disability or whether the employee, with proper medical treatment, can be expected to return to work at some stage in the future. Is it possible to change the employee’s working conditions or job so as to make it possible for him or her to continue working? These sorts of issues become even more difficult if the employee alleges that his or her depression has been caused, either entirely or in part, by difficulties experienced at work.

Questions arising from a dismissal relating to an employee’s depression are often clouded by a number of other issues. In Mphoreng / Connex Travel (2001) 10 CCMA 8.15.6 for instance, the issue in dispute related to the employee’s absence from work. Unauthorised absence was also the issue in Adams / Impala Platinum Mine (2004) 13 CCMA 8.17.7. The question in cases such as these is usually whether the employee has informed the employer of his or her absence in advance or contacted the employer to inform it that he or she would be absence. The question may also arise as to whether or not the employee’s leave was authorised.

An employee may also try to use depression as a tactic to delay a disciplinary hearing (see Dunn / Telkom SA Ltd & Others (2003) 12 CCMA 8.18.6)

An employee’s absence can reach an extreme, of course. In Johnson / Department of Justice (2003) 12 GPSBC 7.2.1 the employee was absent from work for about four months due to depression. Eventually the employer stopped paying him and only then did the employee re-appear, armed with medical certificates stating that he was unfit for duty. The employer argued that everything possible had been done to contact the employee during his absence, but that the employee had only returned to work once the flow of money had been shut off. Because the employee had failed in his duty to contact his employer and to inform his employer as to where he was, the dismissal was found to be substantively fair.

SAMWU obo Van Wyngaardt / City of Cape Town (Tygerberg Administration) (2001) 10 CCMA 8.1.8 does deal with dismissal for incapacity, but in this case the employee’s depression was only part of his health problems — he also experienced problems with his knee, shoulder and tuberculosis in addition to the depression.

There appear to be no reported arbitration awards that deal solely with depression as a ground for an ill health dismissal. Almost invariably, it seems, an employee is charged with misconduct in some form or another (absenteeism, for example) or the employee’s ill health is eclipsed by his or her poor performance (in this case the employer will probably choose to dismiss the employee on the basis of the employee’s failing to meet performance standards) — see Shabani / Thales Geosolutions SA (Pty) Ltd (2001) 10 CCMA 8.1.11.

Employers, it seems, do not dismiss employees solely on the basis of their ill health when they suffer from depression and they normally rely on other grounds for dismissal. Because of some remaining stigma attached to depression, there may be some residual difficulties in dealing with this illness appropriately and sympathetically. But an employee who suffers from diagnosed major depression should be treated the same way as any other ill employee, and there should be no differentiation in respect of sick leave, for instance. Abuse of leave or taking unauthorised leave or simply staying away are forms of misconduct, and many feel more comfortable using these as the basis for a dismissal.