1 00:00:03,120 --> 00:00:05,440 Daphne William: Hello everyone. My name is Daphne William. 2 00:00:05,440 --> 00:00:09,520 I am a partner in our employment department in our Johannesburg office. 3 00:00:09,680 --> 00:00:13,120 Today I'm joined by Owethu Mbambo, my fellow partner. 4 00:00:13,120 --> 00:00:21,920 Owethu Mbambo: Hi everyone! Daphne and I provide legal advice to national and multinational businesses on their employment, 5 00:00:21,960 --> 00:00:26,720 labour, occupational safety and employment equity matters. 6 00:00:27,200 --> 00:00:34,920 Daphne William: October is Mental Health Awareness Month and today we are diving into a topic that is becoming important for employers 7 00:00:34,920 --> 00:00:38,720 and that is how to manage mental health in workplaces. 8 00:00:39,280 --> 00:00:43,640 Owethu Mbambo: This is absolutely an important topic at the moment, Daph. 9 00:00:43,840 --> 00:00:51,760 Mental health in the workplace isn't just about wellness, it's also about legal compliance and creating a safe, 10 00:00:51,800 --> 00:00:54,800 productive environment for employees. 11 00:00:55,000 --> 00:00:58,800 So in this episode, we'll unpack what the law says. 12 00:00:59,040 --> 00:01:07,630 Give practical steps for employers to consider and explore what happens when mental health results in an employee's 13 00:01:07,630 --> 00:01:14,310 incapacity to work, and an employer's obligations to address that incapacity. 14 00:01:14,910 --> 00:01:21,190 Daphne William: Employers need to understand that mental health affects not only employees, 15 00:01:21,190 --> 00:01:28,710 but also their bottom line. Globally, 15% of working adults live with a mental disorder. 16 00:01:28,910 --> 00:01:37,870 Depression and anxiety are common in the workplace and cost the economy nearly a trillion dollars every year. 17 00:01:38,350 --> 00:01:42,470 Owethu Mbambo: While Daphne, those are some really significant figures. 18 00:01:42,990 --> 00:01:48,510 In the South African context, the Occupational Health and Safety Act requires employers to 19 00:01:48,550 --> 00:01:54,470 ensure that workplaces are free from physical and mental health risks. 20 00:01:54,510 --> 00:02:00,790 We also have the Employment Equity Act, which prohibits discrimination based on disability. 21 00:02:01,210 --> 00:02:04,290 This includes mental health conditions. 22 00:02:04,290 --> 00:02:09,370 So ignoring mental health isn't just bad for workplace morale, 23 00:02:09,370 --> 00:02:12,250 it's also a legal risk for employers. 24 00:02:13,050 --> 00:02:19,170 Internationally, on the other hand, the World Health Organization guidelines and the 25 00:02:19,170 --> 00:02:28,610 International Labour Strategy emphasize prevention and support as key mechanisms to deal with mental health. 26 00:02:28,890 --> 00:02:38,450 Locally, we also have the Sans ISO 4501 standard, which makes it clear that mental health is 27 00:02:38,450 --> 00:02:47,010 part of occupational safety. Employers are required to identify psychosocial hazards in terms of the standard, 28 00:02:47,290 --> 00:02:54,250 such as excessive workload or harassment, and ensure that they mitigate these hazards. 29 00:02:55,130 --> 00:03:02,760 Daphne William: Thank you for taking us through the legal framework that that govern employers obligations when it comes to mental 30 00:03:02,760 --> 00:03:05,240 health and safety in the organisation. 31 00:03:05,240 --> 00:03:09,800 But can you just explain to us practically how does this look like? 32 00:03:09,800 --> 00:03:14,200 What do employers have to do to implement these obligations? 33 00:03:14,240 --> 00:03:21,960 Owethu Mbambo: Practically, this means employers must conduct risk assessments and identify the psychosocial hazards in their 34 00:03:21,960 --> 00:03:27,960 workplace and ensure that they involve employees in these risk assessments. 35 00:03:28,320 --> 00:03:35,080 It's not enough for employers to just offer an employee assistance program and hope for the best. 36 00:03:35,480 --> 00:03:41,480 Employers must also implement systemic fixes such as reasonable workloads, 37 00:03:41,520 --> 00:03:45,000 predictable schedules, and anti-bullying policies. 38 00:03:45,520 --> 00:03:52,720 Daphne William: Thanks. Owethu, just explain to us very high level, what three factors should employers have in mind when 39 00:03:52,760 --> 00:03:55,920 effectively managing mental health in the workplace? 40 00:03:56,440 --> 00:04:01,920 Owethu Mbambo: Of course. So their first prevention, as the old adage goes, 41 00:04:02,030 --> 00:04:08,670 prevention is the best cure. In this case, employers must consider prevention measures such as 42 00:04:08,710 --> 00:04:14,870 redesigning work where possible, implementing clear anti-harassment policies, 43 00:04:15,030 --> 00:04:19,390 and training managers to spot stressors in the workplace. 44 00:04:19,830 --> 00:04:27,310 And then secondly, employers must look at how they can promote and protect mental health in the workplace. 45 00:04:27,710 --> 00:04:32,870 So this would include measures such as training staff to reduce stigma, 46 00:04:33,230 --> 00:04:42,150 encouraging help seeking by employees, and protecting privacy of employees because employees want 47 00:04:42,150 --> 00:04:50,350 to feel safe and disclose in an environment where they do not fear that there may be reprisals for struggling with 48 00:04:50,350 --> 00:04:59,710 mental health. And lastly, employers need to consider how they can support employees that are already struggling with 49 00:04:59,710 --> 00:05:01,670 mental health in the workplace. 50 00:05:01,790 --> 00:05:07,820 This would include reasonable accommodations such as the adjustment of duties, 51 00:05:08,020 --> 00:05:13,420 considering flexible working hours and phased returns to work, 52 00:05:13,660 --> 00:05:15,500 or structured returns to work. 53 00:05:15,500 --> 00:05:20,700 For employees who have been off work for some time due to mental health, 54 00:05:20,860 --> 00:05:26,460 and also having quality assistance programs for employees. 55 00:05:26,700 --> 00:05:35,180 It is important to remember again that employee assistance programs are not a substitute for organisational change. 56 00:05:35,780 --> 00:05:44,300 Daphne William: We know that mental health also affects an employee's ability to perform their work and may result in the employee 57 00:05:44,300 --> 00:05:53,940 being incapacitated. The code of good practice on dismissals sets out guidelines to employers and employees on how to 58 00:05:54,020 --> 00:06:01,740 deal with the legal obligations placed on employers under the Labour Relations Act regarding dismissals for 59 00:06:01,920 --> 00:06:09,840 incapacity. The new code was published on the 4th of September 2025 and has replaced the old code. 60 00:06:10,080 --> 00:06:18,560 It's very important to highlight that this code provides that incapacity can occur as a result of mental ill health, 61 00:06:18,800 --> 00:06:23,320 so mental ill health is recognized as a ground for incapacity, 62 00:06:23,320 --> 00:06:28,360 and this can be either temporary or permanent incapacity. 63 00:06:28,920 --> 00:06:37,760 Employers are required to determine the degree and cause of the incapacity when considering dismissing employees, 64 00:06:37,800 --> 00:06:44,480 as it is those two factors that will be relevant when determining the fairness of a dismissal. 65 00:06:44,840 --> 00:06:51,120 So how do employers do this? Employers are required to investigate the extent of the incapacity. 66 00:06:51,520 --> 00:06:57,600 The employer is also required to investigate all possible alternatives short of dismissal. 67 00:06:57,920 --> 00:07:05,350 If the employee is likely to be absent for an unreasonably long period due to their mental health. 68 00:07:05,990 --> 00:07:13,230 If the employee's incapacity is found to be permanent, an employer is required to ascertain the possibility of 69 00:07:13,230 --> 00:07:18,030 securing alternative employment for the employee, or alternatively, 70 00:07:18,390 --> 00:07:23,950 adapting the employee's duties or work to accommodate their mental ill health. 71 00:07:24,550 --> 00:07:29,350 Owethu Mbambo: It appears that the code does provide a lot of guidance on the issue. 72 00:07:29,790 --> 00:07:39,110 So, what is an employer expected to do if an employee raises mental health as a defense to a poor performance 73 00:07:39,110 --> 00:07:39,910 process? 74 00:07:40,310 --> 00:07:45,950 Daphne William: That's a very good question. O2, we know that employers are required to follow two different 75 00:07:46,310 --> 00:07:52,710 processes when dealing with poor work performance, and a different process when dealing with an employee's 76 00:07:52,710 --> 00:07:55,470 incapacity as a result of ill health. 77 00:07:56,230 --> 00:08:01,390 If mental illness comes up as a defence in a poor work performance process, 78 00:08:01,870 --> 00:08:08,980 the question becomes whether an employer is obliged to incorporate or change the process that they are currently 79 00:08:08,980 --> 00:08:17,500 following. We know that an employer would follow an incapacity process for ill health when an employee is 80 00:08:17,500 --> 00:08:27,300 incapacitated. However, the employer would follow a separate process when the employee's poor work performance is an 81 00:08:27,300 --> 00:08:37,300 issue. In those instances, an employer would have to ascertain whether the employee has successfully shown that 82 00:08:37,300 --> 00:08:41,580 poor work performance was as a result of their mental wellness. 83 00:08:42,020 --> 00:08:51,100 If that is the case, the employer would have to combine or change the process depending on the facts that is faced by 84 00:08:51,100 --> 00:08:51,900 the employer. 85 00:08:52,180 --> 00:08:57,580 Owethu Mbambo: So def how have our courts dealt with this issue of mental health? 86 00:08:58,140 --> 00:09:06,250 Daphne William: The courts have provided guidance to employers on this issue of mental health in light of poor work performance as well 87 00:09:06,250 --> 00:09:09,250 as mental health in light of misconduct charges. 88 00:09:09,450 --> 00:09:18,050 And the Labour Court has confirmed that employers must deal with depression or any mental illness issues raised by 89 00:09:18,050 --> 00:09:25,770 employees sympathetically. The employer must explore reasonable accommodation as part of the investigation 90 00:09:25,770 --> 00:09:32,650 process and, importantly, the courts have highlighted that dismissal should be of last resort. 91 00:09:33,210 --> 00:09:40,770 The courts have made it a point to employers where it found in a separate case that dismissal was unfair, 92 00:09:41,050 --> 00:09:48,770 where the employer failed to investigate the incapacity before disciplining an employee for misconduct. 93 00:09:49,130 --> 00:09:55,370 The message here is that if ill health, mental ill health specifically is raised, 94 00:09:55,370 --> 00:09:57,530 employers cannot ignore it. 95 00:09:58,130 --> 00:10:06,710 Owethu Mbambo: Essentially, Daph we can sum up this discussion as saying that employers need to ensure that they have prevention 96 00:10:06,710 --> 00:10:15,870 mechanisms in place, that they also promote positive mental health practices in the workplace and ensure that they have 97 00:10:16,230 --> 00:10:24,470 adequate support for employees and where mental health does affect an employee's capacity to work. 98 00:10:24,750 --> 00:10:30,470 An employer must investigate and accommodate an employee where possible, 99 00:10:30,470 --> 00:10:34,230 and only consider dismissal as a last resort. 100 00:10:34,390 --> 00:10:40,150 Daphne William: Exactly Owethu, mental health is part of workplace safety and good businesses. 101 00:10:40,390 --> 00:10:46,150 Employers need to ensure that they are not indifferent when dealing with mental ill health. 102 00:10:46,630 --> 00:10:50,350 It's also very important to highlight that every case is unique. 103 00:10:50,670 --> 00:10:54,550 So if you are dealing with a mental health issue in your workplace, 104 00:10:54,750 --> 00:10:58,190 get tailored legal advice before taking any action. 105 00:10:58,430 --> 00:11:00,470 Thank you very much for joining us today. 106 00:11:00,670 --> 00:11:01,750 Owethu Mbambo: Thank you everyone.