Automatic Unfair Dismissal and Jurisdiction Challenges in Mental Health Cases 

Introduction 

Automatic unfair dismissal refers to situations where an employer terminates an employee’s contract for reasons explicitly prohibited by the LRA. 

These reasons are outlined in Section 187(1) of the South African Labour Relations Act (LRA). One such prohibited reason is unfair discrimination. 

In summary Section 187 of the LRA states the following: 

Section 187 of the Labour Relations Act 66 of 1995 (LRA) outlines automatically unfair dismissals in South Africa: 

• A dismissal is automatically unfair if the employer acts contrary to section 5 or if the reason for dismissal falls into specific categories, including: 

• Employee participation in a protected strike or protest action. 
• Refusal to perform work during an unapproved strike. 
• Exercising rights conferred by the Act. 
• Pregnancy-related dismissals. 
• Dismissal based on HIV status. 
• Other arbitrary reasons not related to conduct or capacity. 

In this article, we’ll explore automatic unfair dismissal, specifically focusing on cases of arbitrary discrimination, more specific related to mental health.  

Mental Health as Arbitrary Grounds for Unfair Discrimination 

When an employee alleges that their dismissal was due to their mental health condition (such as depression), it raises questions of unfair discrimination.  

Mental health is a protected ground under the LRA, and employers must not discriminate against employees based on their mental health status. 

In the Labour Appeal Court Case of Legal Aid SA v Jansen (LAC)¹, the court held that, in dealing with employees with depression, the employer should either follow the procedure in Schedule 8 of the LRA pertaining to incapacity: ill health and injury or, if depression is the cause of the employee’s misconduct, it should be considered as a factor when determining whether dismissal is an appropriate sanction. 

The LAC held that in circumstances where the employee’s case relates to an automatically unfair dismissal, based on depression as the ground for discrimination, the enquiry is whether the reason for the dismissal was the depression, and whether he was subjected to differential treatment as a result of the depression.  

This is a narrow test. The employee bears the onus to prove that he was treated differently because of his depression, and that the dismissal was not related to misconduct for example. 

Cases of Automatic Unfair Dismissals can only be conciliated at the CCMA and should the matter not be resolved; the matter must be referred to the Labour Court for Adjudication;  

Should an employee refer an automatic unfair dismissal dispute for arbitration to the CCMA, the employer will be able to present a jurisdiction challenge as follows:  

1. Arbitration Jurisdiction: 

• The CCMA has jurisdiction to arbitrate disputes arising from unfair dismissals. However, if the dismissal is automatically unfair due to discrimination, the CCMA will lack jurisdiction. Such cases fall under the jurisdiction of the Labour Court. The employee must refer the matter directly to the Labour Court without going through the CCMA process. 

2. Unfair Discrimination Claims: 

• If the employee alleges that his /her mental health condition was the reason for dismissal, the onus to prove same will fall on to the employee. 
• The employer should only need to demonstrate that the dismissal was based on legitimate grounds (such as poor performance, misconduct, or operational requirements) and not the employee’s mental health. 
• If the employee fails to provide a discriminatory reason, the onus shifts to the employer to prove that the reason for dismissal was fair, based on for example, misconduct in the workplace; 

Employer’s Defence Strategies 

3. Documented Evidence: 

• Employers should maintain thorough records of the employee’s performance, behaviour, and any disciplinary actions. 
• If the dismissal is challenged, these records can serve as evidence that the decision was not arbitrary or discriminatory. 

4. Consultation and Reasonable Accommodation: 

• Employers must engage in consultation with the employee before making any dismissal decisions. 
• If the employee’s mental health issue affects their performance, the employer should explore reasonable accommodations (such as adjusted work hours or additional support). 
• Failure to consider reasonable accommodations could strengthen the employee’s case for unfair discrimination. 

5. Consistent Application of Policies: 

• Employers should apply workplace policies consistently to all employees. 
• If the dismissal is based on a breach of policy (e.g., repeated absenteeism), the employer must demonstrate that the same standard applies to everyone. 

Conclusion 

Automatic unfair dismissal claims related to mental health require careful consideration. Employers must avoid arbitrary discrimination and ensure that their decisions are well-founded.  

If faced with such a case, seeking legal advice from Laboured South Africa (info@laboured.org.za, 0823303939 (send initial whatsapp preferable)) and by following due process is crucial to defending against unfair dismissal allegations. 

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