Jansen v Legal Aid South Africa (C678/14)  ZALCCT 17 (16 May 2018)
- Where an employer has knowledge that an employee has a disability, the employer is under a duty to reasonably accommodate the employee.
- In assessing the reason for a dismissal, factual causation as well as legal causation must be considered. Factual causation asks whether the dismissal would have occurred if there was no disability. Legal causation asks whether the disability was the most likely cause of dismissal.
An employee, employed as a paralegal by Legal Aid, was dismissed at a misconduct enquiry for 17 days' unauthorised absenteeism, insolence, and a refusal to obey a lawful instruction. He referred to the Labour Court both an automatically unfair dismissal claim in terms of section 187(1)(f) of the LRA and an unfair discrimination claim under section 6 of the EEA. In both disputes, the employee claimed that the employer unfairly discriminated against him on the ground of his disability.
Because the employer for some reason declined to lead any evidence at all, the court based its decision on the employee's evidence and that of his witness. The court was satisfied that the employee raised a credible possibility that the dominant reason for the dismissal was his mental condition - at the very least his condition played a significant role or influenced the decision to dismiss him.
A month before the disciplinary hearing the employee had brought to the attention of his immediate supervisor as well as Legal Aid's National Human Resources Executive and CEO, his disability of reactive / manic depression. The Labour Court held that where an employer has knowledge that an employee has a disability, the employer is under a duty to reasonably accommodate the employee. Instead of dismissing the employee for misconduct, the employer had a duty to institute an incapacity enquiry.
The LC held that the dismissal of an employee for misconduct, who suffers from a mental condition which the employer is aware of, in circumstances where the acts of misconduct are inextricably intertwined with the employee's mental condition (ie his disability), constitutes an automatically unfair dismissal and unfair discrimination. The employer was ordered to reinstate the employee with full retrospective effect; to pay compensation equivalent to six month's salary and the employee's legal costs.
Turning to how an arbitrator should decide if a dismissal is for misconduct or because of a disability, the LC said that in assessing the reason for a dismissal, 'factual causation' as well as 'legal causation' must be considered. Factual causation asks whether the dismissal would have occurred if there was no disability. Legal causation asks whether the disability was the most likely cause of dismissal. Because the employer did not lead evidence in this case, it was possible for the employee to establish factual and legal causation between the disability and the dismissal.
This case is a reminder that where an employer has knowledge that an employee has a disability, the employer is under a duty to reasonably accommodate the employee. That means at the very least to hold an incapacity hearing rather than a misconduct enquiry. Termination may still result, but that decision will be made with full knowledge of the incapacity / disability and only after considering the required remedial measures.
Extract from the judgment:
 I now turn to the merits of the dispute. It is common cause that the applicant did not dispute that he had acted as alleged by the respondent. He, however, maintained that his depression was the actual reason for his dismissal. During the course of his disciplinary enquiry the applicant submitted proof of his mental condition which the respondent declined to consider, without challenging its authenticity.
 The applicant at all material times suffered from reactive depression, a mental condition, which was triggered by stress in the workplace, particularly the incident concerning Terblanche when he represented the applicant's estranged wife at court.
 The applicant's condition could be very destructive if left unchecked and untreated. The applicant was treated for his condition as evidenced by the medical certificates that he had submitted to the respondent. While the respondent purported to question their authenticity in these proceedings, the respondent had accepted them without question at the time.
 At the time the applicant committed the acts of misconduct for which he had been dismissed, he was suffering from his condition and was using medication. The respondent, despite denial, was aware of the fact that the applicant undergoing medical treatment for his mental condition as illustrated by the testimony of the applicant and Farre.
 In my view, it follows that the respondent had knowledge that the applicant was a person with a disability. For this reason, the respondent was under a duty to reasonably accommodate him. The respondent failed to comply with its duty in this regard. Instead of dismissing the applicant for misconduct, the respondent had a duty to institute an incapacity enquiry. Considering that the respondent had been made aware of the applicant's condition, the respondent in deciding to dismiss the applicant did not have any regard to the circumstances under which the infractions happened and the effect of the applicant's condition upon his conduct.
 Section 1 of the EEA defines people with disabilities as "people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in employment." It follows that the condition suffered by the applicant is not consistent with this definition.
 In my view, the conduct of the respondent in ignoring the applicant's condition and deciding to dismiss him in the circumstances, when viewed objectively against the applicant's depression, had potential to impair the applicant's fundamental human dignity and, accordingly, falls within the grounds envisaged by Section 187 (1) (f) of the LRA.
 In SACWU v Afrox Ltd, in dealing with an automatically unfair dismissal in terms of Section 187(1)(a), this court enunciated the basic principles applicable for determining whether or not a dismissal is automatically unfair. This court stated:
"The enquiry into the reason for the dismissal is an objective one, where the employer's motive for the dismissal will be merely one of a number of factors to be considered. This issue (the reason for the dismissal) is essentially one of causation and I can see no reason why the usual twofold approach to causation, applied in other fields of law, should not be utilised here (compare S v Mokgethi& Others 1990 (1) SA (A) at 39D-41A; Minister of Police v Skosana 1977 (1) SA (A) at 34). I am of the view that the test in Afrox would apply in determining whether or not a dismissal is automatically unfair as envisaged by Section 187(1) (f) of the LRA.
The first step is to determine factual causation; was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the 'main' or 'dominant', or 'proximate' or 'most likely' cause of the dismissal. There are no hard and fast rules to determine the question of legal causation (compare S v Mokgethi at 40).
I would specifically venture to suggest that the most practical way of approaching the issue would be to determine what the most probable inference is that may be drawn from the established facts as a cause of the dismissal, in much the same way as the most probable or plausible inference is drawn from circumstantial evidence in civil cases. It is important to remember that at this stage the fairness of the dismissal is not yet an issue... Only if this test of legal causation also shows that the most probable cause for the dismissal was only participation or support of the protected strike, can it be said that the dismissal was automatically unfair in terms of s 187 (1) (a). If that probable inference cannot be drawn at this stage, the enquiry proceeds a step further".
 From this perspective, in my view, the respondent would not have dismissed the applicant had the latter not suffered from his condition. His conduct, as alleged by the employer and for which he was dismissed was inextricably linked to his mental condition. Differently put, the applicant acted in the manner he did because of his mental condition. The most probable inference to be drawn from the uncontested evidence led by the applicant and Farre is that the probable cause for the applicant's dismissal was his mental condition.
 I am convinced that the applicant has led adequate evidence to indicate that he had suffered from depression and the respondent was, throughout, aware of his mental condition. I am, therefore, satisfied that the applicant has made out a prima facie case and, thus, discharged the evidential burden to show that the reason for his dismissal was on account of his mental condition. On the contrary, the respondent, in electing not to produce any evidence, has failed to discharge the onus to prove the reason for dismissal was permissible, as contemplated in Section 191(2) of the LRA. Hence, an application for absolution from the instance would not succeed as it held in Janda (supra)
 This court in Kroukam(supra)went further and stated:
"In my view, section 187 imposes an evidential burden upon the employee to produce evidence which sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in section 187 for constituting an automatically unfair dismissal". I am, therefore, satisfied that the applicant has raised a credible possibility that the dominant reason for the dismissal was his mental condition. If my conclusion in this respect is incorrect, in my view at least the applicant's condition played a significant role or influenced the decision to dismiss the applicant to a significant extent.
 I now turn to the unfair discrimination claim. Considering that the applicant's dismissal was automatically unfair in terms of Section 187(1) (f) of the LRA, the test for determining such a dismissal should be applicable to prove unfair discrimination within the meaning of Section 6 of the EEA. It follows that the respondent also unfairly discriminated against the applicant on the basis of its policy or practice which is defined in the EEA as including, inter alia, dismissal.