Mental health cases in the workplace can be difficult for employers to manage. This task becomes even more difficult to navigate in circumstances where illnesses appear to arise in the context of work-related stressors or incidents.
By Sian Gaffney, senior associate, and Chloë Loubser, knowledge and learning lawyer at Bowmans
This is because item 10(4) of the Code of Good Practice: Dismissal (Code) places a more onerous duty on employers to accommodate the incapacity of an employee in circumstances where they are injured at work or incapacitated by work-related illness.
In the matter of Le Franschhoek Hotel v CCMA and Others the Labour Court had to consider the Commissioner’s application of item 10(4) of the Code and in particular, whether Le Franschhoek Hotel (Pty) Ltd (Le Franschhoek) sufficiently discharged its duties in terms of the Code when it dismissed its executive chef for incapacity, which had been caused by a workplace incident.
Background
Mr Ferus (employee) was employed by Le Franschhoek as an executive chef. He oversaw three restaurants as well as the training, room service and kitchen staff. His duties included, among others, managing the health and safety of the kitchens.
On 9 January 2019, whilst off duty, the employee received a call from his staff that the kitchen was on fire. He immediately attended the scene and took charge of the situation, using his fire-fighting training to help contain the fire. Emergency services praised the employee and staff for their actions, as the fire could have destroyed the entire building.
The employee continued to work as usual until March 2019, when he explained that he was experiencing panic attacks, anxiety, and had difficulty sleeping. He was absent from work for a few days and thereafter intermittently over the following months.
After discussing the issue with his manager, who referred him to ICAS, he sought medical treatment and was diagnosed with a major depressive episode and anxiety, with traces of post-traumatic stress and flashbacks of the fire. One medical expert recommended light duty for the employee, or sick leave and inpatient psychiatric care for a period of approximately four months, to aid his recovery.
The employee’s manager sent him for assessment by another medical practitioner, whose recommendation was that the employee be put on a 21-day inpatient programme treatment at a clinic in Worster. He advised that if the employee followed the recommendations, he would be able to function at work again at the same level as he had prior to the fire incident. He also recommended that Le Franschhoek arrange to pay for the treatment and then claim it back from the Workers Compensation Fund.
Le Franschhoek did not pay for this treatment and instead gave the employee two months off to attend to his treatment in his personal capacity. The employee eventually commenced inpatient treatment at the end of October 2019 at a psychiatric hospital which continued until 22 November 2019. It was the employee’s wish to return to work after his treatment was completed.
The occupational therapist at the hospital gave several recommendations in respect of the employee, including that he return to work with support from Le Franschhoek and that reasonable accommodation be made to reintegrate him back into the work environment, including reduced duties or an alternative position that is less stressful.
Notwithstanding the recommendations, on 4 December 2019, Le Franschhoek initiated an incapacity hearing and the employee was dismissed. Unhappy with the decision, the employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).
CCMA arbitration proceedings
At arbitration, the Commissioner considered item 10(4) of the Code and found that the employee’s incapacity was directly related to the fire at work and thus Le Franschhoek had a more onerous duty to accommodate him.
The Commissioner noted that Le Franschhoek failed to provide the necessary support for the employee’s recovery, despite his medical recommendations and the availability of alternative work arrangements or adjustments. Although the company arranged temporary replacements for the employee, no long-term accommodations were made.
The Commissioner considered that the employee’s incapacity was not permanent, that he was ready to resume work after his treatment was done, and that if Le Franschhoek had paid for the recommended treatment, the employee would have been treated earlier and the length of incapacity and days absent would have been considerably reduced.
The Commissioner found the employee’s dismissal to be substantively unfair and awarded him six months’ salary as compensation.
Labour Court review proceedings
On review, the Court could not fault the Commissioner’s assessment that the employee’s mental health issues were directly related to the fire at work, thus placing a more onerous responsibility for accommodation on the employer.
The Court upheld the finding that Le Franschhoek failed to adequately accommodate the employee’s incapacity as required by the Code. The Court also highlighted that by 4 December 2019 (the time of the incapacity hearing), the employee’s position remained vacant, and that he and the experts who treated him confirmed his readiness to return to work.
There was accordingly no longer a basis for accommodation as required in terms of the Code. Nor was there a basis to refuse the employee’s resumption of his duties. The Court held that this failure by Le Franschhoek to allow his return constituted a dismissal, which is the conclusion the Commissioner had arrived at.
Accordingly, the Court found no reason to interfere with the decision of the Commissioner and dismissed the application.
Key takeaways
The judgment illustrates the following key principles:
- Employers have a more onerous duty to accommodate employees who are injured at work or suffer from a work-related illness. This may include support for reintegration, making adjustments to work duties, or providing alternative work.
- Mental health conditions resulting from work-related incidents (such as PTSD or anxiety) must be considered with the same seriousness as physical injuries, and employees are entitled to appropriate treatment and support.
- An employer’s failure to assist with an employee’s recovery, such as by not facilitating the suggested medical treatments or not offering alternative duties, where reasonable, can render a dismissal for incapacity substantively unfair.