By Andries Cornelissen B. Proc, Practical Legal Training, Accredited and Certified Mediator, International Accredited and Certified Mediator London School of Mediation, Certified and Accredited Conflict Coach, Practicing Associate: The Association of Arbitrators, Certified and Accredited AHI Representative



Section 187(1)(f) of the Labour Relations Act 66 of 1995 (the LRA) provides that a dismissal will be automatically unfair if the reason for the dismissal is that the ‘employer unfairly discriminated against the employee’.


Legal Aid South Africa v Jansen (LAC) (unreported case no CA3/2019, 21-7-2020) (Murphy AJA with Waglay JP and Phatshoane ADJP concurring)


  • 2007 the employee commenced his employment at Legal Aid South Africa 
  • 2010 the employee was diagnosed with and treated for depression 
  • Later that same year, the employee, suffering from depression and high anxiety, was booked off for a week. It was at this stage and by way of the medical certificate that the employer became aware of the employee’s health condition
  • By September 2013 the employee had already received a final written warning for unauthorised absenteeism and failing to furnish any explanation for his absence
  • July 2013 the employee was appointed as one of the employer’s brand ambassadors. Despite his continued struggle with depression, the employee’s work performance was not affected
  • According to the employee, soon after his promotion, his condition deteriorated and he began to withdraw socially 
  • As a result the employee was more frequently absent from work 
  • November 2013 the employee was charged for –
  • being absent for 17 days between 30 August and 5 November;
  • breaching the employer’s policy by failing to inform his manager of his absence;
  • insolence towards a superior; and
  • insubordination in that he refused to attend to a prisoner as instructed.

The employee admitted to all the transgressions but defended his actions on the basis that his depression caused him to act out of character. Having found him guilty of the charges, Legal Aid South Africa dismissed the employee.

In challenging the fairness of his dismissal, the employee launched an action at the Labour Court (LC) with two different causes of action. The first being a claim that his dismissal was automatically unfair in terms of s 187(1)(f) of the Labour Relations Act 66 of 1995, in that the reason for his dismissal related to the employer unfairly discriminating against him on grounds of his disability. In his second claim and relying on the provisions of the Employment Equity Act 55 of 1998, the employee claimed he was being unfairly discriminated against as a result of his depression.

At proceedings before the LC, the court curiously ruled that the employer lead its evidence first despite the parties not agreeing on the reason why the employee was dismissed. Pursuant to this ruling the employer opted not to lead any evidence.

On behalf of the employee, the only person to testify was Ms Farre, the employee’s clinical psychologist. Her evidence was that the employee showed ‘intense symptoms of temporary reactive depression’ which worsened in 2013, and that he was clearly not coping with his work environment. She further testified that he displayed signs of burnout and that in her view, he was emotionally drained and therefore unable to function properly in his daily tasks.

The court a quo found that the employee had put up a prima facie case in support of the reasons for his dismissal as alleged and that he had been unfairly discriminated against. In the absence of the employer leading any evidence to rebut the version before the court, the employer was ordered to retrospectively reinstate the employee and to further pay him six months’ salary as compensation.

On appeal the Labour Appeal Court (LAC) reiterated the principle that an employee claiming an automatically unfair dismissal bears the evidentiary burden to sufficiently raise a credible possibility that the reason of their dismissal is as alleged. This is done by meeting both the factual and legal requirements of causation.

The central question as phrased by the LAC was whether there was ‘a credible possibility that the respondent was subject to differential treatment on the prohibited ground of depression’.

The LAC noted that the employee admitted to all four counts of misconduct but maintained that his conduct was a consequence of his depression, which obscured his ability to conduct himself in a manner where he could appreciate the wrongfulness of his misconduct, and which affected his self-control.

The LAC held that depression is a form of illness that calls on an employer to invoke the procedures set out in items 10 and 11 of the Code of Good Practice: Dismissal, when addressing an employee’s inability to deliver a satisfactory standard due to their depression.

If it is established that an employee who, on account of their:

  1. depression
  2. state of mind (cognitive ability) 
  3. will (conative ability) 

has been impacted to the extent that he/ she is unable to appreciate the wrongfulness of his/ her actions 

= then dismissal for reasons of misconduct would be inappropriate and substantively unfair and the employer ought to approach the issue in terms of incapacity or from an operational requirements perspective.

Even where an employee’s depression does not impede their cognitive and conative ability, their depression may nevertheless diminish their culpability which in turn will serve as a mitigating factor when deciding the appropriateness of a sanction.

Conative ability, according to the LAC, is a question of fact where the onus lies with the employee claiming their depression impacted their conative ability.

Moving on from this point the LAC held: 

“However, for an employee to succeed in an automatically unfair dismissal claim based on depression, the question is different. Here the inquiry is not confined to whether the employee was depressed and if his depression impacted on his cognitive and conative capacity or diminished his blameworthiness. Rather, it is directed at a narrower determination of whether the reason for his dismissal was his depression and if he was subjected to differential treatment on that basis. Here too, the employee bears the evidentiary burden to establish a credible possibility (approaching a probability) that the reason for dismissal was differential treatment on account of his being depressed and not because he misconducted himself.”

In casu, notwithstanding the fact that the employee did indeed suffer from depression, he had failed to put up a plausible case to accept that his acts of misconduct was caused by his state of depression. The employee led on evidence to establish for example, that his depression formed the basis why he could not call or send his manager a message informing him of his absence. His psychologist examined him a year before the misconduct, and she likewise could not determine whether the employee’s state of depression was the underlying reason for his misconduct.

The court held: “It may well be that but for his depression factually (conditio sine qua non) the respondent might not have committed some of the misconduct; but, still, he has not presented a credible possibility that the dominant or proximate cause of the dismissal was his depression. The mere fact that his depression was a contributing factual cause is not sufficient ground upon which to find that there was an adequate causal link between the respondent’s depression and his dismissal so as to conclude that depression was the reason for it. … What most immediately brought about the dismissal? The proximate reason for the respondent’s dismissal was his four instances of misconduct. It was not his depression, which at best was a contributing or subsidiary causative factor.”

Having found the employee had not presented a credible case, the LAC upheld the appeal with no order as to costs.

It is noteworthy that the court again repeated the fact that depression would be a consideration when determining the substantive fairness of an employee’s dismissal. However, the employee did not – in his pleadings before the LC – challenge the substantive fairness of his dismissal vis-à-vis the acts of misconduct for which the employer dismissed him. Hence, whether his dismissal for misconduct was substantively fair in light of the employee’s depression was not an issue the LAC or the LC was called to decide on.

Andries Cornelissen from Legal Hero

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