World Mental Health Day is marked on October 10. It is a day which is celebrated to increase global awareness of mental health concerns and mobilise initiatives in its favour.
The World Health Organization (WHO) stated that poor working conditions, such as discrimination and inequality, heavy workloads, lack of workplace management and job instability, endanger mental health.
“Globally, an estimated 12 billion working days are lost every year to depression and anxiety at a cost of $1 trillion per year in lost productivity,” said the organisation.
“There are effective actions to prevent mental health risks at work, protect and promote mental health at work, and support workers with mental health conditions.”
But, if your work, has lead you to develop an anxiety disorder or clinical depression, which hinder you from working at best or living your life, what can you do when it comes to taking the legal route?
According to Labour Guide, you may be able to sue and might win if you have an extreme case with documented evidence and good counsel.
The piece by legal experts Jacques van Wyk, Andre van Heerden and Chelsea Roux from Werksmans Attorneys underlined the necessity of recognising and striving to support individuals who struggle with mental health challenges in the workplace.
They pointed to the case of Jansen versus Legal Aid South Africa as an example of how mental health issues should not be handled in the workplace and the price of that.
“Mr Jansen was employed as a paralegal at the Legal Aid South Africa. He was an excellent and hard-working employee. However, in 2010, he was diagnosed with major depression,” said the experts.
“He was referred to hospital and prescribed anti-depressants. A medical certificate reflecting Mr Jansen’s diagnosis of having major depression was provided to the employer.”
Jansen is said to have also asked the employer’s administration manager at the time to be included in the organisation’s wellness initiative.
Subsequently, he was supposedly scheduled to see a clinical psychologist. The mental health expert wrote a report for the employer in which he stated that Jansen was frustrated and had burnout symptoms.
“The psychologist recommended the issues be resolved as soon as possible to create a positive work environment. Mr Jansen tried to meet with the employer to discuss the matter, to no avail,” they wrote.
“He sent communications to the employer’s National HR executive and chief executive. He indicated management had triggered his condition. No response was forthcoming”
The worker’s mental health deteriorated to the point that he would supposedly withdraw from everything and isolate himself for days.
In November 2013, his manager arrived at Jansen's home to provide him with a disciplinary hearing notice.
He was accused of being absent from duty, transgression of his employer’s rules, gross insolence (disrespectful behaviour towards the employer) and refusal to obey a lawful and reasonable instruction.
“At the disciplinary hearing, held on November 20, 2013 and November 21, 2013, Mr Jansen admitted the allegations against him but raised his mentation (mental health) condition as a defence,” explained the law specialists.
“The chairperson found Mr Jansen guilty on all charges and recommended that he be summarily dismissed. Mr Jansen’s submissions that his behaviour was a result of his mental illness was rejected on the basis that there was no medical evidence to substantiate his claim,”
Following a brief break, Jansen reportedly presented the chairperson with the most recent psychological report.
They declined to examine the findings, claiming that reopening the case would be detrimental to the employer.
“In February 2014 the Employer gave Mr Jansen an opportunity to make representations as to why the recommendation should not be implemented, which Mr Jansen subsequently did. Despite his representations, his dismissal was confirmed by the Employer on February 24, 2014,” they said.
“Mr Jansen approached the LC contending that his dismissal amounted to an automatically unfair dismissal in terms of the Labour Relations Act,” they continued.
“He also claimed that he had been unfairly discriminated against in terms of the Employment Equity Act. In particular, he argued that his employer unfairly discriminated against him on the ground of his disability (or an analogous ground) and that this was the primary reason for his dismissal.”
The Labour Court determined that, under the circumstances, the employer owed Jansen a duty to fairly accommodate him but had failed to do so. Instead of conducting an incapacity investigation, the employer fired Jansen for misbehaviour.
“The court held that Mr Jansen’s depression was the sole cause of his dismissal. It was found that the employer would not have dismissed Mr Jansen had he not suffered from depression. His conduct was inextricably linked to his mental condition.”
The employer was directed to restore Mr Jansen with full retroactive effect and to pay Jansen six months’ wages as compensation for the grief caused by the unjust treatment.
So, while mental disorders may be considered ‘invisible’, unlike physical conditions, they deserve to treated with as much energy in the workplace.
It is within your rights as a worker to be treated fairly by the company that hired you.
IOL