The Silent Epidemic: Mental Wellbeing in South African Workplaces

A Legal and Practical Analysis of Employee Mental Health Rights

South Africa's ranking in the World Happiness Report 2025 has highlighted concerning trends about the nation's collective mental wellbeing. Against this backdrop, workplace mental health has emerged as a critical factor affecting both employees and employers. Recent case law provides valuable insights into how South African courts are interpreting employers' responsibilities toward employees facing mental health challenges.

The Legal Landscape: Key Cases Shaping Mental Health Rights

Knowledge and Reasonable Accommodation

In Sanlam Life Insurance Limited v Mogomatsi and Others (CA12/2022), the court established an important precedent: employers must have knowledge of an employee's mental health condition before they can be held liable for failing to provide reasonable accommodation. The appeals court overturned a constructive dismissal finding because the employee failed to prove the employer knew or should have known about his psychiatric ill health. This case emphasises the importance of disclosure and communication between employees and employers.

Procedural Fairness in Mental Health-Related Dismissals

Phosa v Ekurhuleni Municipality (J14/22)[2024] examined whether dismissal for incapacity due to occupational stress was automatically unfair. The court scrutinized whether the employer followed fair procedures and adequately considered the employee's mental health before termination. This case reinforces that occupational stress, when properly documented and communicated, requires appropriate procedural consideration.

Exploring Alternatives to Dismissal

In Wilcocks v Khawula N.O. and Others (D 2158/2018)[2022], the court criticised an employer's failure to explore medical boarding as an alternative to dismissal for an employee suffering from chronic depression. This case is particularly significant because the incapacity was work-related, emphasizing employers' heightened responsibility when workplace conditions contribute to mental health deterioration.

Mental Health Conditions as Disabilities

Legal Aid South Africa v Jansen (CA3/2019)[2020] established that dismissing an employee suffering from depression can constitute discrimination based on disability under the Labour Relations Act. The court ordered reinstatement and compensation, highlighting that mental health conditions can qualify as disabilities deserving protection under anti-discrimination laws.

Procedural Requirements for Mental Health-Related Terminations

Mogomatsi v Goredema N.O. and Others (C560/2019)[2022] reaffirmed that while incapacitating depression could justify termination if handled fairly, procedural fairness must be ensured. This case underscores that employers must follow proper procedures when addressing performance issues related to mental health conditions.

Emerging Regulatory Framework

The Draft Rehabilitation, Reintegration, and Return to Work Regulations (published for public comment in 2023 but not yet promulgated as of March 2025) signal a significant shift in South Africa's approach to workplace injuries and incapacity, including mental health conditions. These regulations emphasise:

• A shift from compensation to comprehensive rehabilitation

• Multi-disciplinary rehabilitation and reintegration processes

• Requirements to exhaust rehabilitation options before termination

• Employer obligations to provide access to rehabilitation facilities and services

While primarily focused on physical injuries, these regulations reflect a broader trend toward more supportive workplace policies for all forms of incapacity, including mental health conditions.

Warning Signs: Recognizing Mental Health Challenges

Employers should be vigilant for indicators of mental health issues, including:

1. Changes in work performance: Missed deadlines, increased errors, difficulty concentrating

2. Attendance issues: Increased absenteeism, frequent tardiness, extended breaks

3. Behavioural changes: Withdrawal from team activities, irritability, decreased communication

4. Physical appearance changes: Significant weight fluctuations, consistent fatigue, disheveled appearance

5. Mood shifts: Persistent sadness, loss of motivation, expressions of hopelessness

Lessons for South African Employers

The evolving case law and regulatory landscape provide several key lessons for employers:

1. Documentation and communication are crucial: Employers should document all performance issues and communications regarding mental health concerns.

2. Knowledge is a prerequisite for liability: Employers must be aware of mental health conditions before they can be held liable for failing to provide reasonable accommodations.

3. Procedural fairness is non-negotiable: When addressing incapacity related to mental health, employers must follow fair procedures, including proper consultation and consideration of medical evidence.

4. Explore alternatives before termination: Before dismissing an employee for mental health-related incapacity, employers should explore alternatives such as medical boarding, adjusted duties, or flexible working arrangements.

5. Recognise mental health conditions as potential disabilities: Serious mental health conditions may qualify as disabilities under anti-discrimination laws, requiring appropriate accommodations.

6. Contribute positively to mental wellbeing: Implementing supportive workplace policies can reduce liability risks while improving employee wellbeing and productivity.

Conclusion

South African case law demonstrates that courts increasingly recognise the importance of mental health in the workplace and expect employers to respond appropriately to employees experiencing mental health challenges. The Draft Rehabilitation, Reintegration, and Return to Work Regulations further indicate a regulatory trend toward more comprehensive support for employee wellbeing.

By understanding legal obligations, recognising warning signs, and implementing supportive policies, employers can navigate the complex intersection of mental health and workplace law while fostering a healthier, more productive work environment. This approach not only mitigates legal risks but also contributes positively to reversing South Africa's concerning happiness metrics.

Join us at our Mid-Year Labour Law Update, where we'll unpack cases like the above mentioned. This year's theme is Labour Law Evolution: The New Face of Labour Relations & Case Law in Disrupted Businesses. What you'll gain:

• Master the Digital Transformation of Labour Law in 2025

• 200+ Labour Law Cases Unpacked by Jonathan Goldberg

• Critical Updates on Upcoming Legislation & NEDLAC Amendments

• Navigate Workplace Challenges from the Digital Era to Discrimination Laws

Register now: https://www.globalbusiness.co.za/gbs-event-details/mid-year-labour-law-update-myllu25