Issues related to mental health, including depression, in the workplace have not always garnered the necessary sympathy or response from employers compared to physical issues, but this is changing say HR and HCM experts at CRS Technologies.

The HR services and solutions company is an experienced, trusted services provider, guiding clients in their use of technology and management of regulation.

Nicol Myburgh, Head: Human Resource Business Unit at CRS Technologies, says there has been a stigma about mental health in the labour market.

“Employers don’t really understand it or sympathise as they do with physical health issues, likely because physical health is clear and apparent, while mental health is not.”“Employers don’t really understand it or sympathise as they do with physical health issues, likely because physical health is clear and apparent, while mental health is not.”

However, the situation is changing, primarily because of the ability to hold employers to account for any discrimination against depression using Employment Equity Act, Chapter 2, Section 6 (1).

As Myburgh explains, while the Basic Conditions of Employment Act does not offer protection for employers with mental health related issues, they are protected in terms of the Employment Equity Act.

This legislation states, “No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds including race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth.”

Additionally employees are protected by the Labour Relations Act, section 187(1)(f) of the Labour Relations Act (LRA) says that: “A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”

Moreover, as Myburgh points out, South Africa’s labour market has kept up with international trends covering disability and has now implemented the ‘Code of Good Practice on Key Aspects of Disability in the Workplace’ issued in 2001.

CRS Technologies advises any employer considering dismissing an employee for anything related to health issues or any other disability, to tread carefully and if there is any uncertainty, to rather seek assistance from experienced, credible consultants.

Ignorance of the Labour Relations Act (specifically Schedule 8: Code of Good Practice: Dismissal), combined with a lack of relevant skills and issues with enforcement are among the challenges faced by employers in managing discipline. As HR and HCM services and solutions specialist CRS Technologies explains, there is a lot for employers to consider in taking appropriate action against employees who transgress rules, do not perform or are found to be in contravention of the labour law.

And the core component of this law that deals with discipline and enforcement is Schedule8 or the Code of Good Practice. This area of the legislation deals with some of the key aspects of dismissal for reasons to conduct and capacity. This Act emphasises the primacy of collective agreements and the key principle in this Code is that employers and employees should treat one another with mutual respect.

The Act recognises three grounds on which a termination of employment might be legitimate – including the conduct of an employee, the capacity of the employee and the operational requirements of the employer’s business. Nicol Myburgh, Head: Human Resource Business Unit at CRS Technologies, says the current labour laws impose a lot of compliance requirements on employers, and are employee-centred which makes it difficult for employers to dismiss a non-performing employee.

“The current labour laws impose a lot of compliance requirements on employers, they are very much employee centred making it extremely difficult for employers to dismiss a non-performing employee. For instance if an employee performs poorly and is dismissed accordingly, the employer must be able to prove whether or not the employee failed to meet a performance standard; if the employee did not meet a required performance standard whether or not; if the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; if the employee was given a fair opportunity to meet the required performance standard; and dismissal was an appropriate sanction for not meeting the required performance standard,” says Myburgh.

However one of the biggest issues facing businesses in South Africa today is that many employers are adopting a punitive approach to discipline contrary to the basis of the Labour Relations Act which is orientated more towards correction and rehabilitation. Myburgh says lately employers are using dismissals as their first option instead of a last resort, and they get rid of a problem by dismissing an employee while various other options are still on the table – such as to issue warnings, dock pay and/or temporary suspension.

Schedule 8 says the courts have endorsed the concept of corrective or progressive discipline and this approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. It adds that efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.

“Many employers don’t understand what is required when discipline is applied, they are inconsistent in the application thereof (dismiss one person and only issue a warning to another for the same offence), they dismiss employees for minor offences, they don’t follow the correct procedures, they don’t allow the employee to defend himself, they don’t inform employees of their rights, etc. All of the above are unfair in terms of the LRA and could land employers up in hot water,” Myburgh continues.

Depending on the size of the company, large corporates are much better equipped to keep up with compliance and legislation changes, however many of them still don’t. The largest group of companies struggling to keep up with legislation changes and compliance are SMMEs, especially if they operate within bargaining council regulated environments since the regulations imposed are extremely complex to understand.

HR Practitioners, as employees typically work in some isolation from the other functional specialists. The non-compliance risks are likely to increase as new legislation starts getting applied. A way of developing in-house risk-management and compliance capacity is to enter an approved and legal consortium or joint venture or association with practitioners in related HR or ER specialisations.

The advice to employers from Myburgh and his team of experts at CRS Technologies is before attempting any form of serious discipline, ensure that you act in line with the Labour Relations Act, and if this cannot be confirmed, rather seek the input and help of experienced, credible consultants.