It's a recession when your neighbour loses his job; it's a depression when you lose yours – Harry S Truman”

14 October 2019 1169

Let’s face it as a young professional, a candidate attorney for that matter, you get tired and fatigued. The pressure from the secretaries and the Mentors can be a bit demanding on both your emotional and mental well-being. Often I sit at my desk or on my bed after a long day and I think about this question: “can I get fired because I’m depressed”.

No 90’s-babies, I am not referring to the term you use on Facebook to express an inner-feeling of dissatisfaction with your work, life, love life or the fact that your pet chewed up your favourite shoe or that feeling that your salary is a couple thousands short of what you envisioned. I am referring to actual depression.

The depression I’m referring to is the one my doctor diagnosed me with shortly after I graduated; looking for a job literally had me depressed. It is the worst emotion you could ever feel. Every day became a living hell, so much so that I questioned my purpose on this earth. Depression will cause you to be on the edge of tears every minute of the day, and trust me when I say; you eventually just stop caring about everything. Relationships suffer, friendships end, and suddenly you feel alone and there's no one but depression to keep you company.

It is of importance in the workplace because it affects how you feel, think and behave. It can lead to a variety of emotional and physical problems, and results in you having trouble doing normal day-to-day activities.

Here is something few people know; October is the month for Mental Health Awareness, so with that in mind let’s take a look at what the Labour Laws of South Africa says about Mental Health in the Workplace.

First and foremost the Code of Good Practice on the Employment of Persons with Disabilities defines persons with disabilities involving work and employment as “persons who have a physical or mental impairment which is long term or recurring and which substantially limits their prospects of entry into or advancement in employment. It is needless to say that our focus here will be on mental impairment.

A mental impairment means a clinically recognized condition or illness that affects a person’s thought processes, judgment or emotions. A few examples hereof includes: Attention Deficit Hyperactivity Disorder (ADHD), anxiety disorder, obsessive compulsive disorder (OCD), bipolar disorder, depression, panic attacks and Post-Traumatic Stress Disorder (PTSD).

Funny enough these are not far-fetched examples, just think about it: You know that one colleague that wants to throw a fit just because a file is incorrectly placed on their table, or the one that’s always running around in a panic because a matter is unresolved or a deadline is approaching. Yes, that’s all signs of mental conditions.   

If an employee thus suffers from a mental impairment, the duty rests on them to inform their employers of such condition. The Code of Good Practice determines that employees can disclose their impairment at any time, even if there is no need for reasonable accommodation. Upon disclosure of such impairment, the employer has the right to require that the employee provide them with sufficient information to confirm the impairment. The employer can further request that the employee undergo testing to determine the employee’s disability at the expense of the employer.

You are probably reading this and thinking “yeah right, as soon as I leave my boss’s office the whole entire office will treat me odd”. So let’s delve into this nice and easy.

  1. There’s this wonderful creation that the brilliant legal minds thought of, it is so wonderful that its part of our Bill of Rights, that thing is called “PRIVACY”. Your employer may not disclose your mental condition unless it is required for your health and safety or for the health and safety of those around you. It may further only be disclosed to relevant staff members if needs be and only upon your written consent
  2. There rests a duty on employers to reasonably accommodate the needs of persons with disabilities. Employers must therefore assess and adopt reasonable measures to accommodate the employee in order to reduce the impact of the impairment of the person’s capacity to fulfil the essential functions of his/her job.
  3. Most importantly, if you suffer from a mental health condition you are entitled to the same protection against discrimination that you’d be entitled to if you had a physical condition. The Employment Equity Act, 55 of 1998, prohibits unfair discrimination against any employee (including an applicant) on the grounds of disability.

So to answer the question, if you disclosed your mental condition with your employers, it is unlawful of them to dismiss you on that ground. They have to adopt reasonable measures to accommodate you.

It is however justifiable for them to dismiss you for dishonesty if you claim to be depressed just because you’re tired and don’t feel like getting up for work on a Monday or Friday for that matter.

In the next Blog we will be looking at a case that illustrates the position of an employee who disclosed his mental health condition but was dismissed by his employer.