INTRODUCTION
Presently, the importance of mental health cannot be overstated. While traditionally associated with physical safety, workplace health has evolved to include mental health, an equally critical aspect of employee productivity and satisfaction.
The South African legislator, recognizing this reality, created robust frameworks to manage workplace safety and health through the Occupational Health and Safety Act, 85 of 1993 (OSHA) and the South African National Standard (SANS) 45001. The global framework such as the World Health Organisation’s (WHO) Comprehensive Mental Health Action Plan (2013 – 2030) recommends organisational interventions, employee training and robust support systems to foster a healthy workplace. These frameworks lay the foundation addressing both physical and psychosocial risks in the workplace.
Mental health issues in the workplace are influenced by a combination of global stressors and unique socio-economic and cultural factors. Typical mental health issues take the form of stress, anxiety, depression, harassment, substance abuse and burnout. Unaddressed, mental issues result in increased absenteeism, reduced productively and an increase in the potential to cause workplace incidents.
Ultimately, mental health challenges eventually take its toll on employee performance resulting in incapacity measures being taken and possible termination of the employment relationship. Therefore, careful consideration must be given to the impact of mental health on employee performance. The Labour Appeal Court case of Independent Municipal and Allied Trade Union obo Strydom and Witzenburg Municipality and Others emphasised the importance and necessity of examining whether mental health conditions contributed to an employee’s poor work performance.
The court made it clear that in cases where an employee’s mental health affects their capacity to perform to the expected standards, the company is obligated to adhere to the Code of Good Practice: Dismissal when considering any possible dismissal. Briefly, this involves an investigation to:
- determine whether the employee is able to continue working in their current position or another suitable role; and
- determine whether reasonable accommodation or adaption of the employee’s working conditions may enable continued employment in the same or different role.
The court made it clear that only if these enquiries establish that no reasonable accommodation is practical may dismissal for incapacity be deemed fair. A failure to follow these steps could render the dismissal unfair, giving rise to serious business challenges. In addition to the risks of an adverse finding in the case of a dismissal based on incapacity, companies should also be cognisant of the treatment of employees with mental health issues.
In practice, the legal framework advocates for accommodating employees as opposed to excluding employees with issues related to mental health.
Beyond that, the legal framework also acts as a safeguard for employees against any form of mental health-based harassment. The Employment Equity Act 55 of 1998 prohibits harassment on both listed and arbitrary grounds. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace further expands on this. The Code explicitly covers harassment based on psychological harm.
To promote an inclusive workplace, companies must proactively implement and set up measures such as clear rules, frequent training on the goals and intent of the Code of Good Practice, and confidential complaint procedures. Companies must thus be competent in the proper management of these procedures. Companies may take proactive steps to integrate mental health into the workplace, boost efficiency among employees, and develop a more engaged and sustainable workforce through the utilization of frameworks like SANS 45001 and WHO’s guidelines.
To sum up, mental health is just as important as physical safety in maintaining a resilient, productive, and sustainable workforce. The expanding social relevance of mental health is reflected in its inclusion in workplace safety. Setting priorities for mental health is now not only required by law but also by business.
Ross Simon – Associate
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© Maserumule Corporate Employment Law – May 2025
