First, the factual cause must be determined and whether the employee would have been dismissed had he or she not had a mental illness. If the answer is yes, the employee was not automatically unfairly dismissed. If the answer is “no”, then legal causality must be taken into account, in establishing the most likely reason for dismissal; whether or not the employee`s mental disorder was the “dominant” or most likely reason for the dismissal. The court will determine what is the most likely conclusion that can be drawn from the facts established as grounds for termination. As burnout, fatigue, and depression become more common among workers, especially workers stuck in the hamster wheel of working from home, employers should seek legal advice on the right approach to dealing with these issues. It is possible for workers to use depression as a means of justifying otherwise unacceptable behavior, and therefore a clear distinction must be made and the facts of each situation properly evaluated. The Labour Court held that the real reason for the defendant`s dismissal of Mr. Jansen was in fact his mental state and not his alleged fault, and that the two were inextricably linked. The court found that the defendant was obliged to take steps to accommodate Mr. Jansen, who had clearly drawn his attention to his mental illness. It was determined that the respondent was in fact obligated to initiate an incapacity investigation in lieu of a disciplinary investigation for misconduct. Mr Jansen was successful in those proceedings before the Labour Court. This award reminds employers that they should consider their employees` submissions that they suffer from mental illness as proverbial warning signs, especially if their submissions are supported by medical certificates.
At this stage, legal advice should be sought in order to respond appropriately to these observations and guard against possible legal risks, as the employer may be required to conduct an investigation of incapacity for work rather than an investigation of misconduct. The distinction between these two surveys can be difficult in practice, as the dividing lines are not always clear, but not making this distinction can obviously also damage the pocket and reputation of the employer. The respondent (Jansen) had been a paralegal at the George Legal Aid Centre since March 2007. He was diagnosed with depression in 2010, but the disease was under control. In 2012, however, his ex-wife filed domestic violence proceedings against him. Ms. Jansen was represented by her colleague and Executive Director, Mr. Terblanche. During this time, Mr. Jansen`s illness worsened, so he was absent from work for 17 days.  It may well be that the respondent did not commit some of the misconduct without his condition sine qua non; Yet he presented no credible possibility that the dominant or immediate cause of the dismissal was his depression.
The mere fact that his depression was a contributory factual cause is not sufficient grounds to establish that there was a sufficient causal link between the respondent`s depression and his dismissal to conclude that the depression was caused. The criteria of legal causality are based on normative value judgments. The paramount consideration in determining legal causation is what is fair and equitable in the circumstances. The question arises as to what was the most immediate, immediate, decisive or substantial reason for the dismissal. What most directly led to the dismissal? The immediate reason for the defendant`s dismissal was his four cases of misconduct. It was not his depression that was at best a contributing or subsidiary causal factor. The plaintiff (“Mr. Jansen”) served as a paralegal from the beginning of his employment with the respondent in 2007 until his immediate termination in 2014. Since 2010, Mr. Jansen had received several medical certificates attesting that he had been diagnosed, among other things, with depression. In fact, Mr. Jansen regularly submitted these certificates to the respondent and repeatedly informed him that his depression was related to problems he had both personally and professionally.
Legal aid appealed to the Labour Court of Appeal. The Court of Appeal recalled that in order to prove an automatic unfair dismissal, the applicant must prove a genuine causal link. In addition, the plaintiff also had to prove the existence of a legal causal link. Mr. Jansen was unable to prove that his depressive acts were due to his depression or that he was fired as a result of his depression. The court found that the most immediate reason for his dismissal was his wrongdoing, not depression. Interim Appeal Justice John Murphy wrote in the unanimous decision: “The evidence in this case convincingly demonstrates that the defendant was depressed. The Respondent had been depressed and suffering from depression since 2011, but nevertheless remained reasonably functional and able to perform his duties for most of that period.
He was not completely unable to work. In addition, the complainant`s policy was simply to require employees who were forced to take sick leave to inform him that they would not report to work. The OCA reiterated that to prove an automatically wrongful dismissal, the first step is to prove the actual causal link. If the actual causal link is proved, the next question to be clarified is that of the legal causal link, namely whether the conduct complained of was the most direct cause of the dismissal. In its request to determine whether the dismissal was automatically unfair, the Court of First Instance referred to the judgment in SACWU/Afrox and considered that the analysis of the reason for the dismissal was objective. The court applied the causation test (also known as the Afrox test, the factual and legal causation test). “The first step is to determine the actual cause: was participation or support, or planned participation or support for the protected strike, a sine qua non (or precondition) for dismissal? In other words, would the dismissal have taken place if there had been no participation in or support for the strike? If so, the dismissal was not automatically unjustified. If the answer is no, this does not immediately lead to automatic illegality; The next question concerns the legal causal link, namely whether this involvement or conduct was the “primary” or “dominant” or “related” or “probable” reason for the dismissal.
It is important to remember that at this stage, the fairness of dismissal is not yet an issue. Only if that examination of the legal causal link also shows that the most likely reason for dismissal was only participation in or support for the protected strike can it be said that the dismissal was automatically unfair within the meaning of Article 187(1)(a).  In March 2007, the Respondent began working as a paralegal for the Appellant at the George Justice Centre and reported to the Respondent.