‘The OHS legislation was expanded to acknowledge that an organisation’s duty on workplace safety includes promoting and protecting its workers’ physical and mental health.’
For many South African employers, Occupational Health and Safety Act (OHSA) compliance is usually focused on their commitment to creating a safe working environment free of physical hazards.
While companies must take these steps to protect their staff from bodily harm, it is frequently overlooked that the Act also implicitly covers employees’ mental and emotional well-being.
Cliffe Dekker Hofmeyr (CDH) Employment Law experts looked at the legalities of mental health in the workplace.
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Health and safety legislation
Fiona Leppan from CDH says South African legislation imposes a duty on every employer to maintain a safe working environment without risk to the health of its employees.
“[In] 2018, the OHS [occupational health and safety] legislation was expanded to acknowledge that an organisation’s duty on workplace safety includes promoting and protecting its workers’ physical and mental health.”
With the increasing prevalence of mental health issues, employers must understand the legalities and address them.
Workplace report
She makes reference to the 2024 State of the Global Workplace report by Gallup.
The report points out how employees’ mental health declined in 2023. “In South Africa specifically, respondents reported feeling high levels of negative emotions such as sadness, anger and loneliness – with no indication that these levels are on the decline.”
Leppan adds that these types of mental health issues often (but not always) manifest in the workplace in the form of poor or lacklustre performance on the part of the employee.
“Employers have been taught to respond to poor performance in the manner prescribed in Schedule 8 of the Code of Good Practice – Dismissal, by embarking on a performance improvement programme (PIP).”
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Consequences of not addressing mental health issues
But Dylan Greenstone, Candidate Attorney at CDH says that the lines become obscured where mental health issues manifest in other forms of misconduct such as acts of gross insolence, emotional or even violent outbursts, gross insubordination, or irrational behaviour.
“These issues are much harder to identify, especially in the face of pending misconduct disciplinary action, where emotions are running high, and the trust relationship has been impacted.
He adds that mental health issues have predominantly been addressed as an ‘ill health’ (incapacity) issue and not as a disability.
“The problem with this approach is that where mental health in the workplace is treated as an incapacity issue, employees suffering from debilitating mental health issues, are not afforded the necessary protections prescribed under the Labour Relations Act, 1995 (LRA) and the Employment Equity Act, 1998 (EEA).”
Employers must conduct proper investigations
He says that neither the LRA, nor the EEA define what is regarded as a ‘disability’ within the employment law context, and whether it can be fairly treated in the same manner as ‘ill health/incapacity’.
“And our Labour Court has been divergent on this issue. This makes it extremely important for employers to conduct proper investigations where they seek to dismiss poor performing employees who may suffer from, inter alia, depression.”
Greenstone adds that it also highlights the importance of appointing skilled disciplinary chairpersons who understand the finer intricacies of labour law, and categorising issues properly to ensure all procedures and tests are followed and applied when chairing disciplinary hearings.
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Labour court outcomes on mental health cases
Due to the varied labour court outcomes on mental health-related cases, he says employers may well be under a statutory duty to assist employees suspected of suffering from mental health issues.
“This puts an additional burden on the employer and further begs the question: To what extent must an employer go in order to satisfy its OHS obligations?”
What employers need to understand
Leppan shares the following advice for employers, gleaned from case law and the various legislative provisions:
- When an employer is faced with an employee who is suffering from mental health issues, the employee should be provided with as much support as reasonably possible and practicable. This may include an investigation by the employer to establish measures that may assist the affected employee or to adapt the working environment if this is practicable.
- Throughout the discussions with the employee, the employer should establish whether the illness is temporary or permanent and if there are any alternatives possible to avoid dismissal.
- Furthermore, and irrespective of the duration of the employment, the employer should always provide the employee with an opportunity to state a case.
- Should there be no alternative available short of dismissal, the employee may be dismissed for incapacity. However, the employer should be able to provide solid evidence that all viable alternatives were considered to avoid legal complications should the employee object.
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