That’s the worst thing about depression:  a human being can survive almost anything, as long as she sees the end in sight.  But depression is so insidious, and it compounds daily, that it’s impossible to ever see the end.  The fog is like a cage without a key.” – Elizabeth Wurtzel

The recent tragic Germanwings crash served as yet another reminder of how far employers are from understanding how to deal with depression in the workplace especially in high risk professions.  Research has proven that the common cognitive symptoms of depression include poor concentration, a person being easily distracted, poor memory/forgetfulness, indecisiveness, slower thinking speed, problem solving difficulties, struggling to find the right words to express ones thoughts and/or negative or distorted thinking patterns.  As such, it goes without saying that employees who suffer from depression are more than likely given psychotropic medication which may affect an employee’s productivity and efficiency within the workplace and/or therapy which costs companies both time and the employee money.  Other common symptoms include forgetfulness and indecisiveness as well as withdrawal and extended sick leave.  There is also the impact that depression has on an employee’s cognitive ability which would suggest that employees who find their thinking more affected by the condition feel more incompetent at work than those who struggle more with a low mood or feelings of helplessness.  Employees therefore with cognitive symptoms are also more likely to take time off for their depression thereby highlighting the issue of absenteeism within the workplace while ill as well as continuing to work whilst ill which further impacts on productivity.

How then should an employer deal with such employees who are unable to fulfil their prescribed duties due to their mental impairment?  The Labour Relations Act, No 66 of 1995 (LRA) is prescriptive in that it requires employers to reasonably accommodate the needs of an employee who are known to suffer from such mental impairments where same impacts on the ability of the employee to perform his/her duties and responsibilities.  Usually, alternative accommodation and/or appropriate alternative employment (appropriate to the employee’s capacity) are considered and only where these are impracticable may medical boarding be considered.  The medical boarding therefore allows the employer to terminate the employment relationship by reasonable notice to the employee.  This is however regulated by Schedule 8 to the LRA, Items 10 and 11, failing which the fairness of such dismissal may be challenged.

“10. Incapacity:  Ill health or injury

1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all of the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability.

2) In the process of the investigation referred to in subsection (1) the employee should be allowed to the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.

11. Guidelines in cases of dismissal arising from ill health or injury.

Any person determining whether a dismissal arising from ill health or injury is unfair should consider:

(a) whether or not the employee is capable of performing the work; and

(b) if the employee is not capable –

(i) the extent to which the employee is unable to perform the work;

(ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and

(iii) the availability of any suitable alternative work.”

Employers are therefore well advised to -

1) Conduct a comprehensive incapacity enquiry in line with the above;
2) Educate employees about the existence of depression and its impact on individual employee performances;
3) Recognising that depression is a mental illness that requires assistance and support;
4) Recognising and accepting that depression is to be treated like any other illness and be dealt with in accordance with procedures in line therewith.

Perhaps if employers supported employees suffering from depression and accommodated them, where reasonably possible, events like the Germanwings crash could be averted.

Written by  Manisha Maganbhai-Mooloo, Partner, and Khanyisile Khanyile, Associate, Adams & Adams, Employment Law Department