Abstract

Keywords

Disability; reasonable accommodation; persons with disabilities; depression; incapacity.

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1 Introduction

The number of persons with disabilities varies significantly from country to country. Several social, economic, and political conditions in a country also influence disability to a large extent. Worldwide the prevalence of disability ranges between 10% and 26%. 1

 Estie Gresse. LLB (cum laudé) LLM LLD (NWU). Senior Lecturer, North-West University. Email: 20322003@nwu.ac.za . ORCiD: orcid.org/0000-0003-2203-7667.

 Werner G Gresse. BCom BCom (Hons) MCom PhD (Labour Relations) (NWU). Senior Lecturer, North-West University. Email: 20385226@nwu.ac.za. ORCiD: orcid.org/0000-0002-0056-5381.

1 WHO and World Bank 2011 https://iris.who.int/bitstream/handle/10665/70670/ WHO_NMH_VIP_11.01_eng.pdf.

Research findings released in 2016 conducted by the South African Depression and Anxiety Group regarding the impact of depression on the South African workforce stated that that at least one in four employees have been diagnosed with depression. Depression was more prevalent between the ages of 25 and 44 years. On average these employees took 18 days off work due to this condition. 3

3 Balaram 2020 De Rebus 9.

In 2008 South Africa ratified the Convention on the Rights of Persons with Disabilities 5

5 Convention on the Rights of Persons with Disabilities (2007) (hereafter the Convention or CRPD).

Employees are incapacitated if they are unable to perform their functions. On the other hand, an employee with a disability who is suitably qualified is, in most instances, in a position to perform fundamental duties of the job with reasonable accommodation. 6

6 Bassuday and Rycroft 2015 ILJ 2516.

Lechwano correctly asserts that for employers to prevent discrimination they need to assess their duty to accommodate employees with a disability. 9

9 Lechwano 2012 http://www.saflii.org/za/journals/DEREBUS/2012/89.html.

In 2020 the Labour Appeal Court (LAC) overturned a judgment by the Labour Court (LC) that found that Legal Aid unfairly discriminated against a respondent with depression. In 2018 the LC ordered Legal Aid to reinstate Mr Jansen in that it had acted unfairly as his depression was most likely the true cause for his misconduct. On appeal the LAC emphasised that to prove automatic unfair dismissal an applicant must prove both factual and legal causation. The LAC further found that the most dominant reason for Mr Jansen's dismissal was his misconduct and not his depression. Nonetheless, the LAC emphasised that depression is a prevalent illness in the current work environment and that all employers have a duty to deal with depression in a sympathetic manner and were reminded of their obligation to investigate the disability fully, to consider reasonable accommodation and to consider alternatives short of dismissal. Employees were also reminded of the fact that they need to co-operate with their employers. Whilst South Africa has made significant progress in enacting legislation, codes and guidelines to lay the foundation for reasonable accommodation, role-players, with specific reference to employers and the judiciary, often overlook these detailed guidelines, especially in cases where the employee suffers from depression. Disabilty is often used interchangeably with incapacity, which is problematic. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code of Good Practice: Key Aspects on the Employment of People with Disabilities of 2002 as well as the Technical Assistance Guidelines. 11

11 Code of Good Practice: Key Aspects on the Employment of People with Disabilities (GN 1345 in GG 23702 of 19 August 2002) (hereafter the Code of Good Practice on the Employment of People with Disabilities); Department of Labour Technical Assistance Guidelines.

2 Factual background and judgments

2.1 Facts and background of the case 12

12 The facts and background to this case are extensive. However, an overview of the factual background was included specifically to demonstrate the different dimensions and lines of communication which may arise as part of reasonable accommodation inquiries.

The respondent was employed as a paralegal on 2 March 2007. During his employment by the appellant, the respondent received several performance bonuses, and he was further appointed as brand ambassador for the appellant. In 2010 the respondent was diagnosed with major depression. This diagnosis was confirmed in a medical certificate. The certificate stated that the respondent presented symptoms of major depression and had been referred to a hospital for counselling and treatment. The respondent duly informed the appellant of his diagnosis. The respondent further requested to be put on the employer's wellness programme. One of the administration managers at that time, Sait, agreed to the respondent's request, and referred him to a social worker, Ms du Preez. During November 2011 the respondent consulted another medical practitioner, Dr Small, who diagnosed him with depression and high anxiety. The respondent submitted the medical certificate to the appellant and was booked off work for about a week. The respondent was also prescribed anti-depressant medication. The respondent thus submitted medical certificates on a continuous basis.

According to evidence provided in the labour court it appears that the following train of events was the cause of his depression: First, in 2012 the respondent got divorced. In September 2012 the respondent's ex-wife launched domestic violence proceedings against him. The respondent's manager (Mr Terblanche) appeared on behalf of the respondent's ex-wife without prior notification to the respondent, as is stipulated by the employer's policy. The respondent perceived Mr Terblanche's action as constituting a conflict of interest as well as a betrayal. The domestic violence dispute was settled after the respondent had attended four counselling sessions. Further correspondence dating from 2012 revealed that the respondent's struggle with depression was constant and the appellant remained aware thereof. The respondent voluntarily participated in the appellant's employee wellness programme in September 2012 for workplace-related stress. During September and October 2012 the respondent consulted a clinical psychologist, Ms Farre, and attended four counselling sessions with her. Ms Farre issued a report dated 18 October 2012 in which she identified the primary cause of the respondent's condition as being Terblanche's representation of his wife in the domestic violence case. She also recommended that the matter be resolved through a conflict resolution process. She did not expressly indicate that the respondent was suffering

from major, chronic or ongoing depression. She did, however, express the view that the respondent "carries a lot of frustration and shows symptoms of burnout". 13

13 Jansen v Legal Aid South Africa 2018 39 ILJ 2024 (LC) (the Jansen LC judgment) para 16.

On the 23rd of October 2012 the respondent wrote a comprehensive letter to the appellant's CEO in which he explained his grievance against Terblanche and the effect it had had on his mental health. The appellant did not act. The appellant however maintained the argument that the respondent's condition was under control since he was using anti-depressant medication and since he was also able to discharge his duties effectively. Prior to September 2013 the respondent was absent from work without leave and without submitting any explanation for his absence. He was issued with a final warning in respect of this category of transgression. The respondent testified that in 2013 he continued to struggle with anxiety and depression. In July 2013 he started to withdraw socially, his dosage of anti-depressants was increased, and he found it difficult to attend work, hence he began not reporting for work. He did inform his line manager, Nicholls, that he was suffering from stress and could not cope.

It was common cause that the respondent failed to report for work for 17 days in the period 30 August 2013 to 5 November 2013. This was in contravention of the appellant's policy, since employees who are unable to report for duty due to illness are required to inform the appellant at the beginning of the workday that they are unable to report for duty and must present a medical certificate substantiating the medical condition which allegedly rendered them unable to work. It was further common cause that the respondent did not contact his line manager on any of the days he was absent from work. Nicholls unsuccessfully tried contacting the respondent telephonically on several of those days.

On 1 October 2013 Terblanche attended the Commission for Conciliation, Mediation and Arbitration (CCMA) at Riversdale, where he unexpectedly came across the respondent and enquired why the respondent had been absent from work without an explanation. The respondent reacted by turning his back on Terblanche, walking away and making a dismissive gesture with his hands. The appellant regarded this conduct as an act of insolence and defiance.

After the above incident the respondent was contacted on 2 and 3 October 2013 by Nicholls and Mr Sait, who is the Administration Manager at George Justice Centre, about why he had failed to report for duty. The respondent responded by informing Nicholls and Sait that he was awaiting a dismissal

letter as he no longer wished to work for the appellant. The respondent was able to submit one medical certificate which explained his absence for a five-day period. The medical certificate indicated that the respondent had consulted a doctor on 16 October 2013, although the certificate booked him off work from 11 to 18 October 2013 14

14 It was submitted that the respondent was under a duty to submit the letter to Human Resources immediately after he was booked off and not wait until he was requested to do so during the disciplinary enquiry.

(i) absence from work for 17 days in the period of 30 August to 5 November 2013;

(ii) transgression of the appellant's policies by failing to inform his line manager of his absence from work;

(iii) insolence relating to the occasion at the CCMA in Riversdale; and

(iv) refusal to obey a lawful and reasonable instruction from Nicholls to attend to a prisoner at Mossel Bay Prison on 10 October 2013. 15

15 Paragraph 3 of the Jansen LC judgment.

The respondent participated in the employee wellness programme in October 2013 for the third time. He also consulted Ms Farre again and attended another four counselling sessions in the period 21 November to 12 December 2013. Ms Farre then submitted a report to Nicholls notifying the appellant that the respondent's condition had deteriorated and that he was not coping with the circumstances at work. She specifically mentioned that the respondents was displaying "intense symptoms of a reactive depression" as well as signs of burnout. She described some of his symptoms as follow:

Diminished interest in almost all activities, he has no tolerance re frustration, his mood is greatly affected, his emotional control is limited, he has diminished appetite and diminished sleep. His ability to cope and function is poor and limited. This state of mind paralyses his whole day to day functioning. 16

16 Paragraph 29 of the Jansen LC judgment.

When Farre drafted the report, she was aware in general terms of the disciplinary charges against the respondent. She further indicated that the respondent's behaviour reflected the state of mind he was in and that he was avoiding all possible stressors "and this accounted for his absence from work". Farre made the following recommendations:

I would strongly recommend that Mr Jansen be granted sick leave for a considered amount of time. He needs to divorce himself from work and try to refocus and prioritize his life. Therapy alone is not enough. His resources for impulse control seems limited therefore he needs timeout. This is a case of great importance. Please take note. 17

17 Paragraph 29 of the Jansen LC judgment.

In her testimony before the Labour Court Farre elaborated on her report and testified that the respondent demonstrated intense symptoms of temporary reactive depression which had worsened in 2013 and the respondent was undoubtedly not coping with his work circumstances. She further testified that the respondent showed signs of burnout - "a state of fatigue or frustration brought about by devotion to a cause, way of life or relationship that failed the expected reward." 18

18 Paragraph 18 of Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC) (the Jansen LAC judgment).

Various managers of the appellant were aware of the respondent's condition. When the notice to attend the disciplinary hearing had been served, it had been served by Nicholls on the respondent personally at his home, where the respondent had informed Nicholls that he was unwell and that he was not coping at work. The respondent had handed him a detailed print-out he had received from one medical practitioner explaining the symptoms of reactive depression. Nicholls had read it in the respondent's presence and had handed it back.

The disciplinary hearing took place on 20 to 21 November 2013. The respondent did not dispute the substance of the allegations against him. However, he maintained that he suffered from depression and had acted out of character. He further read a document into a record setting out the symptoms, causes and effects of reactive depression. After all the evidence had been led the hearing stood down until 9 December 2013. By then the respondent had received Farre's second report. Farre sent her report directly to Nicholls on the 4th of December and it was escalated to Human Resources on the 7th. The chairperson of the disciplinary enquiry did not want to accept the report as evidence since the respondent had not called Farre as a witness and allowing the report would amount to hearsay 19

19 Section 3 of the Law of Evidence Amendment Act 45 of 1988 .

The respondent's internal appeal was also rejected, and he was accordingly dismissed with effect from 25 February 2014.

2.2 Judgments

2.2.1 Judgment in the Labour Court

The Labour Court found that it was common cause that the respondent had submitted proof of his mental condition and the mere fact that the employer had declined this proof without challenging it was problematic. The Labour Court always maintained the view that the respondent had been suffering from depression which was caused by workplace stress, in particular when Terblanche represented the respondent's wife in the domestic violence matter. 20

20 Paragraph 40 of the Jansen LC judgment.

It is unfortunate that the Labour Court did not provide any recommendations on how the appellant could have reasonably accommodated the respondent, nor was any reference made to the applicable Codes and Guidelines imposing such duties.

2.2.2 Judgment in the Labour Appeal Court

The primary argument raised by the appellant was that the respondent was in fact dismissed for misconduct and failed to show that he was dismissed

because of any medical condition or that there was any causal link between his depression and the misconduct which led to his dismissal. The respondent maintained the argument that all four counts of misconduct committed over a duration of time were caused directly by his depression. He further asserted that his depression influenced his ability to "conduct himself in accordance with an appreciation of the wrongfulness of his misconduct and that he had no self-control." 24

24 Paragraph 39 of the Jansen LAC judgment.

In its evaluation of the evidence the LAC emphasised that an applicant seeking to establish an automatic unfair dismissal on the grounds set out in section 187(1) of the Labour Relations Act (the LRA) needs to adhere to the requirements of both factual and legal causation. 26

26 Paragraph 35 of the Jansen LAC judgment.

is there a credible possibility that the respondent was subject to differential treatment on the prohibited ground of depression? If that credible possibility is established then the employer, in order to prevail, needs to produce sufficient evidence rebutting that credible possibility or offering fair justification for the differential treatment. 27

27 Paragraph 38 of the Jansen LAC judgment.

It was common cause that the respondent had committed the alleged transgressions 28

28 The respondent admitted his absence from work for the 17-day period; transgression of the applicable workplace regulations in failing to inform his manager of his absence from work; acting insolently on the occasion at the CCMA in Riversdale; and refusing to obey a lawful and reasonable instruction regarding the Mossel Bay Prison visit on 10 October 2013 (para 28 of the Jansen LAC judgment).

The LAC commenced its evaluation by reminding us of the fact that depression is common in the workplace, a fact which may be attributed to the stresses and pressures of modern-day life. It may be necessary, from time to time, for an employer to manage the impact of depression on an employee's individual performance. 29

29 Paragraph 41 of the Jansen LAC judgment.

an employment relationship, if it were done fairly and in accordance with items 10 and 11 of the Code of Good Practice: Dismissal. 31

31 Item 10 and 11 of the Code of Good Practice: Dismissal, contained in Schedule 8 of the LRA (hereafter the Code of Good Practice on Dismissal).

The LAC then focussed on disability in the context of possible misconduct. The LAC acknowledged that depression may also play a role in an employee's misconduct. The LAC explained it as follow:

It is not beyond possibility that depression might, in certain circumstance negate an employee's capacity for wrongdoing. An employee may not be liable for misconduct on account of severe depression impacting on his state of mind (cognitive ability) and his will (conative ability) to the extent that he is unable to appreciate the wrongfulness of his conduct and/or is unable to conduct himself in accordance with an appreciation of wrongfulness. 35

35 Paragraph 42 of the Jansen LAC judgment.

If the evidence supports such a finding, the dismissal would be inappropriate and substantively unfair, and the employer would be required to approach "the difficulty from an incapacity or operational requirements perspective". In the alternative, should the evidence demonstrate that the cognitive and conative capacities of an employee have not 36

36 Own emphasis.

An employee alleging that conative ability was absent/lacking bears the onus of proof of that defence. To hold otherwise would undermine the managerial prerogative of discipline in instances where misconduct is committed by employees who suffer mental difficulties such as depression,

anxiety, alcoholism, grief and the like. The LAC explained the matter as follows:

the fact that an employee was depressed 38

38 It may be stated respectfully that the submission by the LAC is flawed. Depression may cause an employee to be disabled and may thus require reasonable accommodation. The terms incapacity and disability should not be used inter-changeably. An employee can be dismissed for incapacity only once it is demonstrated that he/she will not be able to reasonably be accommodated.

However, if an employee is to succeed in a claim for automatic unfair dismissal based on depression, one would have a different enquiry. In such an instance the enquiry would not be limited to the question whether the employee was depressed and if his depression influenced his cognitive and conative capacity or lessened his blameworthiness. Rather, one would need to have a narrower determination of whether the reason for his dismissal arose from the employee's depression and whether the employee had been subjected to differential treatment on that basis. The onus of proof once again rested on the employee to establish a credible possibility that the reason for dismissal was differential treatment because of his disability and not because of the alleged misconduct. 40

40 Paragraph 45 of the Jansen LAC judgment.

Turning to the evidence before it, the LAC asserted that it was uncontested that the respondent was depressed. 41

41 The respondent was taking anti-depression medication; his working life and personal circumstances were tense; and the treating psychologist, Ms Farre's reports, and the evidence confirmed as much.

"respondent appreciated the difference between right and wrong and that he was capable of acting in accordance with such appreciation." 42

42 Paragraph 46 of the Jansen LAC judgment.

Further, the Court indicated that even though the respondent has been depressed since 2011 he had not been wholly incapacitated. He had remained reasonably functional and had been able to fulfil his duties through-out most of that period. The Court also referred to the appellant's policy in the judgment. The policy merely stated that in instances where employees were compelled to take sick leave, they had to advise that they would not be reporting for duty. All that was thus expected of the respondent was to send an e-mail or make a telephone call. The evidence did not illustrate that the respondent had been incapacitated to such an extent that he had been unable to do so. The Court also referred to the CCMA incident 43

43 Which occurred on 1 October 2013.

The Court explained that the appellant had a legitimate basis for imposing discipline, the respondent's depression notwithstanding.

The court made the following observation/finding: 45

45 Paragraph 48 of the Jansen LAC judgment.

The proximate reason for disciplining the respondent was his misconduct and not the fact that he was depressed. He was relatively capable and knowingly conducted himself in contravention of the rules of the workplace. Discipline was justifiably called for. It may well be that but for his depression factually (conditio sine qua non) the respondent might not have committed some of the misconduct; but, still, he has not presented a credible possibility that the dominant or proximate cause of the dismissal was his depression. The mere fact that his depression was a contributing factual cause is not sufficient ground upon which to find that there was an adequate causal link between the respondent's depression and his dismissal so as to conclude that depression was the reason for it. The criteria of legal causation, it must be said, are based upon normative value judgments. The overriding consideration in the determination of legal causation is what is fair and just in the given circumstances.

The court explained the matter further by stating that one needed to ask the following questions: What was the most immediate, proximate, decisive or substantial cause of the dismissal. What most immediately brought about the dismissal? The Court found that his depression was at best a contributing or subsidiary causative factor, and the main reasons for his dismissal were the four counts of misconduct. 46

46 Paragraph 49 of the Jansen LAC judgment.

(i) that the treatment he received by the appellant in any way differed from the treatment of other employees;

(ii) or most importantly, that the reason for such alleged differential treatment was his depression.

The respondent had failed to establish a credible possibility that his dismissal was automatically unfair nor had he been able to prove on a balance of probabilities that it was discrimination on a prohibited ground under the EEA. The more probable reason for his dismissal was his misconduct (which was undisputed in the disciplinary enquiry and recorded as common cause in the pre-trial minutes). 47

47 Paragraph 50 of the Jansen LAC judgment.

The LAC conclude by emphasising as follow:

As already discussed, but worthy of repeating, that is not to say that the depression of an employee is of insignificant relevance. Depression, sadly, is a prevalent illness in the current environment. Employers have a duty to deal with it sympathetically and should investigate it fully and consider reasonable accommodation and alternatives short of dismissal. In addition, where depression may account in part for an employee's misconduct, depending on the circumstances and the nature of the misconduct, dismissal may not be appropriate. However, for the reasons explained, in this instance, there was no proper claim of substantive unfairness before the Labour Court which is the subject of an appeal or cross-appeal before us. Our jurisdiction in this appeal is constrained by the pleadings. 48

48 Paragraph 51 of the Jansen LAC judgment.

The Court ultimately found that the LC accordingly erred in finding unfair discrimination and that the dismissal was automatically unfair. The appeal was upheld, and the finding of the LC were set aside. No order for costs were made.

3 Analysis 49

49 It is important to note that this judgment raises many important themes, such as South Africa's constitutional, regional and international obligations related to reasonable accommodation; the blurred line between incapacity and misconduct; automatic unfair dismissals; definitions of disability; models of disability; substantive equality; etc. However, the aim of this article is to discuss the judgments of the LC and the LAC, to emphasise that uncertainty that still exists for both the judiciary and other role-players on what the duty to reasonable accommodation entails. As was illustrated in both the LC and LAC judgments, courts still use the terms "disability” and “incapacity" interchangeably, which leads to even more confusion.

3.1 Domestic legislative framework and case law on the duty to reasonably accommodate with disabilities: A legal conundrum

The origin of the test for the fairness of a dismissal of an employee is the Constitution of the Republic of South Africa. 50

50 Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).

disability. This right is further given effect to by other labour legislation, codes of good practice 51

51 Code of Good Practice on the Employment of People with Disabilities; Code of Good Practice on Dismissal.

Generally, in terms of the LRA an employer is entitled to dismiss an employee for reasons relating to his or her misconduct, incapacity, and operational requirements. However, such dismissals should be both procedurally and substantively fair. 55

55 See s 188 of the LRA.

"Persons with Disabilities" are defined in section 1 of the EEA as follows:

People who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment. 57

57 The Compensation for Occupational Injuries and Diseases Act Amendment Bill was published for public comment on 17 December 2018 and "Disability" is defined in this draft Bill as follows: "disability means for purposes of rehabilitation in terms of this Act a permanent Iong term or recurring physical or mental disability which substantially limits the prospects of a person to obtain by virtue of any service, employment or profession the means needed to enable that person to provide for maintenance". Disability is thus defined differently in our labour law legislation, which creates legal uncertainty.

The National Strategic Framework on Reasonable Accommodation for Persons with Disabilities 58

58 GN 605 in GG 45328 of 15 October 2021. It is important to note that the framework should be used to guide government reporting on the implementation of the White Article on the Rights of Persons with Disabilities. The courts and tribunals may also use this framework to interpret and apply existing legislation. It is further declared in the Framework that it is anticipated that it will become a regulation over the next three years under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. This is worrying, since we then have another set of obligations set out in yet another Act, instead of having one Act to assist with proper role clarification.

Disability is an evolving concept, imposed by society when a person with a physical, psychosocial, intellectual, neurological and/or sensory impairment is

denied access to full participation in all aspects of life, and when society fails to uphold the rights and specific needs of individuals with impairments. 60

60 This proposed definition of disability is thus broader than the definition currently contained in the EEA.

Persons with Disabilities is also defined as follow:

Persons with Disabilities include those who have perceived and or actual physical, psychosocial, intellectual, neurological and/or sensory impairments which, as a result of various attitudinal, communication, physical and information barriers, are hindered in participating fully and effectively in society on an equal basis with others. 61

61 Section 1.2 of the National Strategic Framework on Reasonable Accommodation for Persons with Disabilities (GN 605 in GG 45328 of 15 October 2021).

The United Nations Convention on the Rights of Persons with Disabilities (Convention or CRPD) emphasises the vision that all human rights are indivisible, inter-related and inter-connected. The CRPD further defines disability as being inclusive of but not limited to long-term physical, mental, intellectual or sensory impairment. 62

62 Article 1 of the CRPD.

In 2008 South Africa ratified the CRPD as well as the Optional Protocol, thus committing itself to its provisions relating inter alia to workplace integration. 63

63 UN 2023 https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=IV-15&chapter=4&clang=_en.

Article 26 of the Convention mandates States Parties to take appropriate and effective measures to allow persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. Article 27(i)-(k) of the CRPD recognises the rights of persons with disabilities to work, and provides as follow:

(i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace; (j) Promote the acquisition by persons with disabilities of work experience in the open labour market; (k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

"Reasonable accommodation" is defined in the section 1 of the EEA as follows:

any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment.

In a recent judgment of Smith v Kit Kat Group (Pty) Ltd 64

64 Smith v Kit Kat Group (Pty) Ltd 2017 38 ILJ 483 (LC) (hereafter the Smith case).

when he/she believed 65

65 Own emphasis.

Employers are obliged to take steps to accommodate Persons with Disabilities unless such accommodation results in unjustifiable hardship. "Unjustifiable hardship" is not defined in the EEA, but the Code of Good Practice on the Employment of People with Disabilities in section 6 provides as follows:

Unjustifiable hardship is action that requires significant or considerable difficulty or expense and that would substantially harm the viability of the enterprise. This involves considering the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business. 70

70 Also see Standard Bank of SA v CCMA 2008 29 ILJ 1239 (LC) (hereafter the Standard Bank case) para 93, in which the LC defined it as follows: "Unjustifiable hardship means more than mere negligible effort. Just as the notion of reasonable accommodation imports a proportionality test, so too does the concept of unjustifiable hardship. Some hardship is envisaged. A minor interference or inconvenience does not come close to meeting the threshold but a substantial interference with the rights of others does."

Marumoagae 71

71 Marumoagae 2012 PELJ 355.

relationship as a whole, including the employment contract, as well as the operational and organisational requirements. 73

73 See Gresse Integration, Rehabilitation and Return-to-Work 349.

The LC in the Jansen judgment thus erred in its evaluation of the evidence when it stated that incapacity proceedings were required instead of embarking on a disciplinary enquiry for misconduct. It is also disappointing to note that the respondent never raised unjustifiable hardship as a possible defence.

3.1.1 The Code of Good Practice: Key Aspects on the Employment of People with Disabilities of 2002

The Code of Good Practice: Key Aspects on the Employment of People with Disabilities 74

74 GN 1345 in GG 23702 of 19 August 2002 (the Code of Good Practice on the Employment of People with Disabilities, or just the Code).

The Code's aim is to guide, educate and inform employers, employees and trade unions on their rights and obligations, and to promote and encourage equal opportunities and the fair treatment of Persons with Disabilities. The Technical Assistance Guidelines on the Employment of Persons with Disabilities 75

75 Department of Labour Technical Assistance Guidelines.

The Code embraces the social model of disability in that the focus is not on the impairment but rather on the interplay between the disability and the working environment. 77

77 Ngwena and Pretorius 2003 ILJ 1820.

Section 188(2) of the LRA provides as follows:

any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was affected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.

It is thus important for all role-players in a reasonable accommodation or incapacity enquiry to consider the relevant provisions of the Code 81

81 With reference to the enforceability, item 3 of the Code provides as follow: "The Code is not an authoritative summary of the law, nor does it create additional rights and obligations. Failure to observe the Code does not, by itself, render a person liable in any proceedings. Nevertheless, when the courts and tribunals interpret and apply the Employment Equity Act, they must consider it."

Another very important obligation is set out in item 6.6 of the Code, which requires the employer to consult the employee and, where reasonable and practical, technical experts to establish appropriate mechanisms to accommodate the employee. 87

87 Item 6.6 of the Code.

accommodation may be temporary or permanent depending on the nature and extent of the disability. 89

89 Item 6.8 of the Code.

Item 6.9 of the Code provides as follow:

Reasonable accommodation includes but is not limited to:

(i) adapting existing facilities to make them accessible; ii) adapting existing equipment or acquiring new equipment including computer hardware and software; iii) re-organizing workstations; iv) changing training and assessment materials and systems; v) restructuring jobs so that non-essential functions are re assigned; vi) adjusting working time and leave; vii) and providing specialized supervision, training and support in the workplace.

An employer need not accommodate a qualified applicant or an employee with a disability if this would impose an unjustifiable hardship on the business of the employer. 90

90 Item 6.11 of the Code. "Unjustifiable hardship" is defined in the Code as follow: "action that requires significant or considerable difficulty or expense. This involves considering, amongst other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business" (item 6.12).

Item 11 deals with the retention of employees who become disabled during employment. It provides that where reasonable they should be reintegrated into work. Employers need to minimise the impact of the disability on employees. The employer should consult the employee to assess if the disability can be reasonably accommodated. The employer should maintain contact with the employee and where reasonable encourage an early return to work. 91

91 Item 11.3 of the Code.

Since our courts have not been consistent in treating depression at some times as a disability and at other times as incapacity, it is also necessary to consider Schedule 8 of the LRA, the Code of Good Practice on Dismissal.

Item 11 of the Code provides as follows:

11. 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; (b) if the employee is not capable— (i) the extent to which the employee is able to perform the work; (ii) the extent to which the employee's work circumstances might be adapted to accommodate the 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.

Item 10 sets out that incapacity on the grounds of ill health or injury may be either temporary or permanent. In instances where the employee is temporarily unable to work, the employer must investigate the extent of the incapacity or injury. If it is revealed that the employee is likely to be absent for a period that could be "unreasonably long" in the circumstances, the employer must investigate all possible alternatives short of dismissal, including a period of absence or finding a temporary replacement. Other relevant factors to consider are the nature of the job and the extent of the illness or injury. In instances of permanent incapacity, the employer must determine the possibility of securing alternative employment or adapting the employee's duties or work circumstances to accommodate the disability 94

94 The fact that the code refers to "disability" here adds to the confusion between the reasonable accommodation procedure set out in the Code of Good Practice on the Employment of People with Disabilities and the Code of Good Practice on Dismissal.

3.1.2 Disability versus incapacity

Reading the above two Codes together does create some uncertainty. The terms ''disability'' and ''incapacity'' are used interchangeably in the Code. This leads to several uncertainties. For instance, when does one process commence and the other one end? Is it possible to determine when disability ends and incapacity commences? Our courts have also not been consistent in this regard. 96

96 For instance, in the case of Independent Municipal and Allied Trade Unions v Witzenberg Municipality 2012 33 ILJ 1081 (LAC) the LAC categorised mental illness as an issue of incapacity due to ill health. The same court in the case of New Way Motor and Diesel Engineering (Pty) Ltd v Marsland (JA 15/2007) [2009] ZALAC 27 (13 August 2009) considered it as a disability – see Cliffe Dekker Hofmeyr 2020 https://www.cliffedekkerhofmeyr.com/en/news/publications/2020/Employment/employment-alert-2-march-ohsa-yes-this-includes-mental-health-what-does-the-law-say.html. Also see Ngcobo Courts' Treatment of Depression 109. It is the authors'

Dismissal on the grounds of incapacity may overlap with automatically unfair dismissals. If employment is terminated on the grounds of incapacity, this may fall within the ambit of the provisions relating to automatically unfair dismissals or within the scope of the EEA (as well as the applicable Code) for an infringement on the prohibition of discrimination because of disability. A distinction between disability and incapacity exists. 97

97 Grogan Workplace Law 276.

In the Smith judgment the Court also referred to the case of Standard Bank, in which the court also made the following statement:

Disability is not synonymous with incapacity. … An employee is incapacitated if the employer cannot accommodate her or if she refuses an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair but dismissing an employee who is disabled but not incapacitated is unfair. 99

99 Paragraph 94 of the Standard Bank case.

Incapacity and disability are thus two separate concepts under the South African Labour Law. The fact that one is disabled does not necessarily imply that one is incapacitated. 100

100 Marumoagae 2012 PELJ 356.

Yet, the mere fact that someone is, e.g. permanently wheelchair bound following an accident, does not automatically render them disabled – the emphasis falls on the impact of the impairment on the person's ability to do his or her job, not on the nature of the impairment. The person who becomes wheelchair bound will only be regarded as having a 'disability' if this substantially (i.e. in a material way) affects his or her ability to do his or her job. In one case, for example, the Labour Court decided that someone who unsuccessfully tried to become a volunteer fireman because of a disability (diabetes), was not 'disabled' because he could function normally with the aid of the medication he was using at the time. The fact that someone is no longer able to do his or her current job does not mean that he or she is incapable of doing any job, or that the current job cannot be adapted to suit the employee's disability. If we could use the wheelchair example again – if the current job of the person concerned requires her, for example, to climb ladders, she will clearly no longer be able to do that job. However, if the person's position can

be adapted to accommodate her relative immobility, the employer is under an obligation to consider this option.

We agree with the submission of Grogan, 102

102 Grogan Workplace Law 276.

In National Education Health and Allied Workers Union obo Lucas and Department of Health (Western Cape) 107

107 National Education Health and Allied Workers Union obo Lucas and Department of Health (Western Cape) 2004 25 ILJ 2091 (BCA).

In Wylie and Standard Executors & Trustees 109

109 Wylie and Standard Executors and Trustees 2006 27 ILJ 2210 (CCMA).

each other. The difference lies in the fact that "incapacity" implies that the employee is no longer able to perform the essential functions of his/her job, while "disabled" refers to an employee who is suitably qualified, with reasonable accommodation, and can perform the essential functions of his/her position.

To conclude, the term "incapacity for work" refers to circumstance where a person is unable to work due usually due to a medical condition. A person may have a disability and still have the capacity to work. A person who is incapable, on the other hand, might not be disabled. When a person's condition makes it impossible for the person to engage in employment, this is when incapacity occurs. This could imply that a person is currently unable to perform any work or that the person is unable to perform the employment s/he would typically perform. 110

110 Spicker 2003 International Social Security Review 35.

3.1.3 Technical Assistance Guidelines on the Employment of Persons with Disabilities of 2017 111

111 Department of Labour Technical Assistance Guidelines.

It is also important to consider the Technical Assistance Guidelines on the Employment of Persons with Disabilities as well as the National Strategic Framework on Reasonable Accommodation for Persons with Disabilities. The Technical Assistance Guidelines aim to provide practical guidelines for employees, employers and trade unions to promote diversity, equality and fair treatment to eliminate unfair discrimination. It thus forms part of the broader agenda to promote equality for Persons with Disabilities to receive recognition in the labour market. As with the Code, these guidelines are the foundation for the implementation of the EEA and are used by the courts as a guide when disputes arise. 113

113 Cole and Van der Walt 2014 Obiter 522. It is very unfortunate to observe that courts seldom refer to the Guidelines, however. Neither the LC or the LAC referred to these recently updates Guidelines. How is it possible to determine if an employer has discharged its duty to reasonable accommodate if there is no reference to and proper discussion of the relevant codes and guidelines?

Reasonable accommodation, which is modifications or alterations to the way a job is normally performed, should make it possible for a suitably qualified person with a disability to perform as everyone else. The type of reasonable accommodation required would depend on the job and its essential functions, the work environment and the person's specific impairment. 114

114 Department of Labour Technical Assistance Guidelines 15. This is in line with Art 2 of the CRPD: "'Reasonable accommodation' means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden,

The Guidelines contain examples of what reasonable accommodation may entail. 115

115 The following are examples of reasonable accommodation: workstation modifications; adjustment to work schedules; adjustment to the nature and duration of the duties of the employee at work, either on a temporary or permanent basis; the reallocation of non-essential job tasks and any other modifications to the way the work is normally performed or has been performed in the past; support and reasonable accommodation that may include access to a job coach, more frequent rest periods, considering the side effects of medication for a person with intellectual or emotional disability; possible adjustment of the work hours; management of environmental factors such as noise levels and interruptions; opportunities for Persons with Disabilities who depend on the support of care-givers, particularly in cases of severe disability, to have the care-giver accommodated in the workplace.

Item 6.3.7 is of direct relevance. It makes provision for the retention of employees. It provides as follow:

The employer is required to ensure through rehabilitation, training or any other appropriate measure the retention of existing staff with disabilities. Where an existing employee becomes disabled, the employer must ensure that the employee remains in their job before considering alternatives, for example, re-deployment. Based on operational requirements, the employer must give objective consideration to requests from employees with disabilities for reduced, part-time or alternative duties. Where an existing employee becomes disabled, the employer should maintain contact with the employee and, where reasonable, encourage early return to work. This may require vocational rehabilitation, adjustment to work arrangements, transitional work programmes and, where appropriate, temporary or permanent flexible working times.

Most importantly, it sets out some of the obligations of employers 117

117 Item 6.18 of Department of Labour Technical Assistance Guidelines. For instance, employers need to familiarise themselves with reasonable accommodation and how it can assist both the employee and employer; must be prepared to respond to requests for reasonable accommodation at any time in an employee's relationship with work; they need to be prepared to listen to and respond to those requests; the person with a disability must be treated as a primary partner in the process of selecting reasonable accommodation - and the employed should consult with experts only when this is needed, and should make sure that the experts are ''familiar with best practices in equity based disability employment" etc.

The National Strategic Framework on Reasonable Accommodation for Persons with Disabilities defines reasonable accommodation as follow:

Reasonable accommodation refers to necessary and appropriate modification and adjustments, as well as assistive devices and technology, not imposing a situation, where needed in a particular case, to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. 119

119 Section 1.2 of the National Strategic Framework on Reasonable Accommodation for Persons with Disabilities.

The Framework contains the obligations of several different stakeholders, 120

120 Chapter 6 contains a list of objectives for several stakeholders such as civil society; governmental departments; public and private institutions and the Research and Development Sector.

3.1.4 Further case law on the employer's duty to reasonably accommodate persons with disabilities

In the IMATU obo Strydom v Witzenberg Municipality case, the court emphasised that the determination of an employee's capability (or otherwise) will be finalised only once a proper assessment is conducted. Should it happen that the assessment reveals that the employee is permanently incapacitated, the enquiry does not end there. The employer must then establish whether it cannot adapt the employee's work circumstances "so as to accommodate the incapacity, or adapt the employee's duties, or provide him with alternative work if same is available." 121

121 Paragraph 6 of IMATU obo Strydom v Witzenberg Municipality 2012 33 ILJ 1081 (LAC) (hereafter the Strydom case).

In LS v Commission for Conciliation, Mediation and Arbitration 123

123 LS v CCMA 2014 35 ILJ 2205 (LC).

The process should be interactive, a dialogue, an investigation of alternatives conducted with a give and take attitude. Outright refusal to accommodate shows a degree of inflexibility contrary to the spirit and purpose of the duty to accommodate. 127

127 Paragraph 91 of the Standard Bank case.

The LC made a very important contribution by providing a four-step enquiry 128

128 Paragraphs 70-76 of the Standard Bank case.

Stage Three: The employer must enquire into the extent to which it can adapt the employee's work circumstances to accommodate the disability. If it is not possible to adapt the employee's work circumstances, the employer must enquire into the extent to which it can adapt the employee's duties. Adapting the employee's work circumstances takes preference over adapting the employee's duties because the employer should, as far as possible, reinstate the employee. During this stage, the employer must consider alternatives short of dismissal. The employer has to take into account relevant factors including "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 employee. Stage Four: If no adaptation is possible, the employer must enquire if any suitable work is available. 129

129 Paragraphs 74-76 of the Standard Bank case.

The Standard Bank case demonstrates that a fine line exists between "ordinary" dismissals based on incapacity and automatically unfair dismissals and disability. In this case, the Court emphasised that a claim for unfair dismissal based on incapacity "goes further than the LRA may seem to suggest." 130

130 This can be explained by the fact that all employers are obliged in cases of incapacity also to investigate whether the person also may have a disability, as contemplated in the EEA and the relevant codes and guidelines.

In the case of National Education Health and Allied Workers Union obo Lucas and Department of Health (Western Cape) 135

135 National Education Health and Allied Workers Union obo Lucas and Department of Health (Western Cape) 2004 25 ILJ 2091 (BCA).

In LS v CCMA 139

139 LS v CCMA 2014 35 ILJ 2205 (LC).

3.1.5 Reflection

If is important to consider all the facts of the Jansen judgment to grasp what reasonable accommodation may entail. Hence the facts were explained in

detail at the beginning of this article. The authors would like to make the following observations and/or recommendations: 143

143 The recommendations should not be seen or interpreted as speculation. The aim of the observations and/or recommendations is to provide practical suggestions regarding the duty to reasonably accommodate, especially in cases of depression. The importance of role clarification when disabled employees need to be reasonably accommodated should not be under-estimated.

As noted earlier, the LC mistakenly observed that the respondent's disability implied an incapacity enquiry. This raises the question why courts still view disability and incapacity in the same light? This may be attributed to a few causes. One possible explanation for this is the fact that the procedure for incapacity and the procedure for reasonable accommodation are very similar. Secondly, the Code 144

144 Code of Good Practice on Dismissal.

If one considers the so-called treatment plan to be found in the Jansen judgment, it is troublesome. We need to bear in mind that Jansen was diagnosed with major depression by a general practitioner in 2010 as well as in 2011, which was confirmed by the production of medical certificates. Farre, the clinical psychologist who consulted Jansen in 2012 and 2013, did not have a similar view, but she did allude to the fact that he showed symptoms of re-active depression (in 2013), burnout, frustration and lack of rational thought. Jansen had also been on anti-depressant medication since November 2011. Was the medication prescribed by one of the general practitioners? If so, had the prescription been renewed since November 2011 or had he been referred to a specialist such as a psychiatrist? We need to further bear in mind that he had also participated in the employee wellness programme three times. No report from the wellness officer emerged in any of the evidence. 145

145 It is submitted that employee wellness programmes cannot function in isolation. They are merely one of the components in a reasonable accommodation procedure.

Jansen's line manager is yet another role-player we need to consider. What role did his manager play besides the referral to the employee wellness programme? Were any adjustments made to Jansen's work environment or job to reasonably accommodate him after his first diagnosis in 2010? In this case there were several role-players without a designated and focussed disability management plan or without any coordinator or case manager to

oversee its implementation. 146

146 See Gresse Integration, Rehabilitation and Return-to-Work 377-412 for detailed recommendations and functions for role-players. E.g., employers need to be pro-active and conduct formal workplace assessments and put plans in place to make reasonable adjustments; they need to communicate the genuine and reasonable requirements of the position to medical practitioners for them to identify the reasonable adjustments required to accommodate the workers' current capacity. Communication between different role-players is therefore vital, including with trade unions. It may also be necessary for employers to consider reports from vocational rehabilitation service providers. Reasonable accommodation measures need to be attended to on a case-by-case basis.

With reference to the conduct of the respondent, it is important to note the following recommendations: For instance, when there was no follow through on the conflict resolution, as proposed by Farre, a formal grievance should have been submitted. Writing a letter to a CEO of such a large company as Legal Aid is firstly a fruitless exercise since it is likely to go unnoticed and secondly, it also goes against the policy and procedure for lodging a grievance at Legal Aid. The outcome of his case may perhaps have been different if he had argued substantive unfairness based on unfair dismissal, and not automatic unfair dismissal. It is also important for employees to lead expert testimony during disciplinary hearings, and not merely to rely on documentary evidence which may be interpreted as hearsay and unreliable. Employees should consult experts such as psychologists, psychiatrists and occupational therapists on a continuous basis. 147

147 This can be costly and should be discussed and negotiated before the roll-out of a disability management plan.

other role-players after a disability management plan is agreed upon and drafted.

The authors hereof are not disputing the finding of the LAC, but the Court could have substantiated more with reference to the reasonable accommodation of mentally ill employees in the workplace. The Court did not refer to any of the relevant Technical Assistance Guidelines, except for reference to one, 148

148 Own emphasis.

4 Conclusion

The article has aimed to demonstrate that many uncertainties still exist regarding the relevant procedures to be followed where an employee suffers from depression. Role-players, including our courts, have not been consistent in their interpretation of the procedures to be followed to reasonably accommodate employees with disabilities. Courts do refer to relevant Codes at times, but item 6 of the Code of Good Practice on the Employment of Persons with Disabilities is often overlooked.

Employers and employees need to familiarise themselves with the relevant Codes of Good Practice, the toolkits 152

152 Such as the Toolkit published by the South African Human Rights Commission – see SAHRC date unknown https://www.sahrc.org.za/home/21/files/20170524%20 SAHRC%20Disability%20Monitoring%20Framework%20and%20guidelines%20Draft%205.pdf.

Role-clarification is important in any reasonable accommodation enquiry. It would add much value if courts were to start to recommend tangible and practical solutions to reasonably accommodate disability, which may include flexible leave arrangements and practical suggestions on how to position quality disability management in an organisation. When employees are booked off sick (the sickness may include mental illness), organisations need to have an early return-to-work strategy in place to assist with an early but safe transition back to work. 153

153 Other practical recommendations may include the following: employee wellness programmes (as part of a holistic agreed-upon disability management plan); and evaluations of the working environment to determine how employees can be reasonably accommodated once they return to work, after being booked off. There needs to be an open dialogue between all role-players, including line managers and co-employees. Designated case managers need to be appointed to oversee the reasonable accommodation as well as the transitional work arrangements. A flow of communication amongst all role players is crucial, and all relevant parties need to have a firm understanding of their duties.

Gresse and Mbao explained it further as follows:

It must be borne in mind that it may be more difficult to accommodate mental disabilities, and employers need to be innovative when developing their wellness and disability management strategies. Mental illness needs to be destigmatised and the lines of communication need to be open. … Until we have clear legislative and policy frameworks setting out the duties of role players to manage all types of disability, it is left to our courts to shed light on what such duties entail. One thing is clear, it needs to be a well-coordinated approach, with the buy-in of all stakeholders involved, who all are working towards a common goal: to return employees back to work, by deploying reasonable accommodative measures. Companies should be encouraged to

develop their own manuals, in accordance with Codes and Guidelines, in order to determine how disability will be managed. 155

155 Gresse and Mbao 2020 LDD 128.

Our legislation is further still deficient in relation to the definition of "disability" which, if rectified, may assist employers to follow the correct procedures and provide the right support to employees with mental illness to ensure their full and equal. participation in the workplace. 156

156 Ngcobo Courts' Treatment of Depression 104.

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List Of Abbreviations