Employer Obligations for Employee Mental Health

Issue: What are an employer’s obligations regarding an employee suffering from mental health issues?

Here’s a question Molly:

I have been diagnosed with depression by my doctor, and a significant contributing factor is the ongoing breakdown in my relationship with my manager, whom has been subjecting me to psychological harassment and bullying. I work in the public service, and the situation has escalated to the point that my doctor has formally recommended I be moved to a different section where I would not have any interaction with this manager for the sake of my health and wellbeing.

I have been on a period of sick leave, and as I approached my return to work, I requested a meeting with both my manager and her superior to discuss how the doctor’s recommendations could be implemented to ensure my safe and sustainable return to work. However, my manager says she’s too busy to meet me and has not provided any alternative arrangements or interim solutions. Instead, I was simply told I must return to the office.

Given this, and in light of my doctor’s advice, I have decided to continue working remotely until suitable arrangements can be made to support my return in a way that safeguards my mental health. In response, my manager wrote to me accusing me of failing to comply with a “lawful and reasonable instruction” to return to office. She called my actions “gross insubordination” and “highly disrespectful and insolent.”

There has been no acknowledgment of my medical condition or the doctor’s recommendations in any of her communications. I have now been told that if I do not physically return to the office, disciplinary proceedings will be initiated against me. Please advise.

From The Legal Desk:

Thanks for the question, Molly. I’m sorry to hear about your situation. You’re right to be concerned. Good mental health should be a priority for every business. When a workplace fails to address mental health issues, it can lead to reduced productivity, increased sick leave, and compromised safety. It seems such a failure is what you’re experiencing. Let’s take a look at the legals…

The Occupational Health and Safety Act¹ places a general duty on employers to provide and maintain a working environment that is safe and without risk to the physical and psychological health of their employees. The psychological harm you’re experiencing, as confirmed by your doctor, could be considered a “hazard” under this Act. Your employer has a legal duty to address and mitigate it.

The Labour Relations Act (LRA)² prohibits unfair discrimination on the basis of disability. The Labour Appeal Court in Legal Aid South Africa v Jansen³ held that depression can be regarded as a disability for the purposes of the LRA and the Employment Equity Act.⁴ The court also emphasised the employer’s duty to deal with mental illness sympathetically, to investigate the situation, and to consider “reasonable accommodation and alternatives short of dismissal.”

As you are in the public service, the Public Service Wellness Management Policy also applies. Part C of this policy focuses on Psycho-Social Wellness, with the aim of promoting a healthy, safe, and supportive work environment. This policy measures include the provision of employee wellness programmes and the management of human factors that impact organisational wellness. Your manager’s disregard of your medical condition and the doctor’s recommendation is in direct contravention of the principles of this policy.

Likewise, the Public Service Policy on the Prevention and Elimination of Harassment explicitly defines psychological harassment as “any improper conduct that is repeated and persistent… which could have a debilitating effect on the well-being of the victim.” It also defines bullying as “a form of psychological harassment” that includes “threatening behaviour or any conduct which… may cause physical or psychological harm or emotional distress.” This policy places a clear responsibility on the employer to address and prevent such behaviour. The actions you have described from your manager fall squarely within these definitions.

Based on the legal and policy framework I have briefly laid out above, your employer has a clear duty to accommodate your medical condition. Your doctor’s recommendation for a transfer to another section is a form of reasonable accommodation, which the employer is legally obligated to consider and explore.

Your manager’s instruction for you to return to the office physically, without addressing your medical condition or the underlying harassment complaint, is likely to be viewed as unlawful and unreasonable. An instruction is only lawful and reasonable if it does not place the employee’s health and safety at risk. In your case, a physical return to the office, without the recommended accommodation, could be a direct risk to your mental health.

The threat of a disciplinary process for “gross insubordination” may be viewed as an unfair labour practice. Your refusal to return to the office is not an act of wilful disobedience but rather a necessary measure to protect your health, based on a medical professional’s advice.

If you are unable to perform due to incapacity-related issues arising from mental health concerns, your employer is required to explore reasonable accommodation, where this is possible, before resorting to disciplinary action. Should your manager proceed directly to disciplinary action, you would have a strong basis to challenge it as substantively and procedurally unfair, especially when medical evidence suggests your health condition influenced your behaviour.

While it is not yet applicable in your case, if your employer’s conduct makes continued employment intolerable for you and you are forced to resign, you may have a claim for constructive dismissal. The case of Sanlam Life Insurance Ltd v Mogomatsi⁵ confirmed that constructive dismissal claims can be based on mental ill health, provided the employee can prove that the employer was aware of the condition and failed to address it. Your written communications and the doctor’s note will be crucial evidence in this regard.

Based on the above, if you have not already done so, you should immediately lodge a formal grievance against your manager for psychological harassment and bullying. This will formally trigger the employer’s obligation to investigate the matter.

Very importantly, do not ignore your manager’s communication to you. Formally respond to her letter(s). State clearly and respectfully that your decision to work remotely is not an act of insubordination but a necessary measure of reasonable accommodation, based on your doctor’s recommendation, to ensure your health and safety at work. Attach the doctor’s letter to this communication. In your formal communication, bypass your manager and request an urgent meeting with the Head of Department or a senior HR official to discuss the implementation of your doctor’s recommendations and the ongoing harassment.

Finally, in everything you do, ensure you keep detailed and secure records of all communications, medical certificates, and incidents of alleged harassment. This documentation will be essential if the matter escalates to formal proceedings. All the best.

Written by Theo Tembo