Managing an employee who suffers from a ‘visible’ illness or injury (e.g., a damaged
or lost limb or back injury) is difficult enough. Managing a situation involving an
‘invisible’ illness, e.g., depression, can be even more challenging, as the employer in
discovered.
Marsland, a marketing manager, suffered from depression and anxiety following his
wife’s decision during their Christmas vacation to divorce him after 24 years of
marriage. He was absent from work for several weeks as a result and was placed on
anti-depressant medication.
After his return to work his employer, not knowing how to deal with the problem,
unilaterally started taking responsibilities away from Marsland. He was also made to
feel that he was ‘different’ and should be treated with circumspection. This frustrated
the employee endlessly and caused him to feel isolated. Over a period of about five
months the relationship deteriorated to the extent that a disciplinary hearing was held
that resulted in Marsland receiving a final written warning for certain aspects of his
behaviour. Importantly in the context of this case, the employer found nothing wrong
with his performance.
Shortly afterwards Marsland had another serious depressive episode and was
booked off for two weeks. Upon his return he was confronted with a plan to
outsource his functions. After a serious altercation with his boss about this, during
which the boss threatened to assault Marsland, the latter stormed off the premises,
never to return.
In subsequent proceedings before the Labour Court, it was found that Marsland had
been constructively dismissed because of his depression. The dismissal, said the
court, was also automatically unfair because it related to a prohibited ground in terms
of s 187 of the LRA.
The case holds a number of lessons for employers. First, an employee may not be
dismissed purely because he or she suffers from depression. In Marsland’s case the
only reason for his dismissal was his depression – there were no further incidents of
misconduct, nor was there a problem with his performance. Therefore, the only
reason that remained in this case was his depression.
Second, employers are often caught between a rock and a hard place in these
situations: on the one hand, the law requires one to reasonably accommodate the
employee, yet one cannot ignore the fact that an employee’s performance might be compromised as a result of their illness. In such cases employers are advised to
obtain expert advice, e.g., from the employee’s or another psychologist, on how to
manage the problem in a way that recognises the employee’s problem, yet ensures
an acceptable level of performance. Part of the problem in Marsland’s case was that
the employer had failed to seek such advice and as a result did not know how to
handle the situation. Unilaterally taking away the employee’s responsibilities and
isolating him is possibly the worst thing Marsland’s employer could have done in the
circumstances.
Finally, dismissal of someone suffering from depression should be an act of last
resort and should be considered only if the employee is unable to function effectively
as a result of the illness. Even if this was the case, one would first need to consider
alternatives to dismissal in consultation with the employee, e.g., hiring a temporary
replacement, or temporarily adjusting the employee’s functions, before resorting to
dismissal.
Barney Jordaan
Maserumule Consulting
September 2009