“Managing an employee who suffers from a “visible” illness or injury (for example a damaged or lost limb or back injury) is difficult enough. Managing a situation involving an invisible illness, such as depression, can be even more challenging, as the employer in discovered in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland ILJ (2009) BLLR 1181 LAC.” (Maserumule Consulting “Dealing with Invisible Illness”).
This case highlighted the fact that an employee may not be dismissed purely on the grounds that he or she suffers from depression. The court found that Marsland had been constructively dismissed because of his depression. Section 188 of the Labour Relations Act (66 of 1995) (LRA) provides that a dismissal which is not automatically unfair, is unfair when the employer fails to prove that the reason for dismissal was fair in relation to the employee’s conduct or capacity. The question is whether the court a quo in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland (“New Way Motor”) was correct in deciding that the employer’s decision to dismiss the employee was automatically unfair.
Click here to read the full article by Baitseng Rangata (Co-Chairman) and Mello Lehutjo (Labour Consultant).