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Don't just dismiss an employee for this 'invisible illness' or it could cost you 24 months' pay!

by , 20 October 2014
Managing an employee who suffers from a 'visible' illness or injury such as a lost limb or back injury is difficult enough. But managing an 'invisible' illness, such as depression, is even more challenging.

Let's look at the case of to show how careful you need to be when it comes to employees suffering from depression.

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Warning: 1 out of 3 dismissals are deemed as 'unfair' by the CCMA!


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The roles and rules you need to adhere to... The different questions you need to ask...
 
The different types of evidence that can legally be presented... There are dozens of things you need to keep in mind to give each employee a fair hearing.
 

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Case law: Marsland v New Way Motor & Diesel Engineering (J4175/02) [2008] ZALC 157; (2009) 30 ILJ 169 (LC)
 
Marsland was a marketing manager at New Way Motor & Diesel Engineering. He started suffering from depression and anxiety after his wife asked for a divorce. He was absent from work for a few weeks and was put on anti-depressant medication.
 
Let's look at the facts:
  • When Marsland went back to work, his employer didn't know how to deal with the problem. So, he took responsibilities away from Marsland without discussing it with him.
  • Marsland felt he was 'different' and everyone was treating him with care. This frustrated him and made him to feel isolated.
  • After about five months, the relationship got so bad that Marsland had to attend a disciplinary hearing.
  • He received a final written warning for certain aspects of his behaviour. But, what's important about this case, is his boss said there was nothing wrong with Marsland's performance.
  • Shortly after this, Marsland had another serious depressive episode. He was booked off for two weeks.
  • When he went back to work, his boss said there was a plan to outsource his functions. Marsland and his boss had a serious altercation about this. During this episode the boss threatened to assault Marsland. He the stormed off the premises, never to return.
  • Marsland took the matter to the Labour Court. The Court said the company had constructively dismissed Marsland because of his depression.
  • The Court also said the dismissal was also automatically unfair. This is because it related to a prohibited ground in terms of Section 187 of the LRA.
  • The employer had to pay Marsland two year's salary, his leave pay, overtime pay and all costs!

Keep reading to find out what you can learn from this case...

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So, what can you learn from this case?
  • Firstly, you can't dismiss an employee because he has depression. In Marsland's case the only reason for his dismissal was his depression. There weren't any other acts of misconduct, nor was there a problem with his performance.
  • Secondly, this is a difficult situation to face. This is because the law says you have to reasonably accommodate the employee. But you also can't ignore the fact his performance isn't up to scratch because of his illness. So, you should get expert advice on how to manage this in a way that deals with employee's problem, but also makes sure he still performs. Get advice from the employee's psychologist, or refer him to one.
  • Part of the problem in this case was that his employer didn't get advice. This meant he didn't know how to handle the situation. Taking away his responsibilities without discussing it with him, and then isolating him, is the worst thing he could've done.
  • Finally, dismissing someone for should be your last resort. Only do this if the employee can't work properly because of the illness. And even in this case, you still need to consult with the employee on alternatives to dismissal. For example, hiring a temporary replacement, or adjusting some of his functions, before dismissing him.
 One you've tried all possible routes, then you can follow the Incapacity for ill-health procedure.


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