Mental illness, harassment and labour laws: Some thoughts on harassment by employees suffering from mental illness

Abstract

Section 23 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to fair labour practices. Section 9 of the Constitution prohibits unfair discrimination directly or indirectly against anyone on one or more grounds, including among others disability. In terms of section 6(1) of the Employment Equity Act (EEA), no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including among others disability or on any other arbitrary ground. Section 6(1) applies to employees, which includes applicants; but it is only limited to conduct occurring within the scope of an “employment policy or practice”. In Marsland v New Way Motor & Diesel Engineering (2009) 30 ILJ 169 (LC), the court concluded that discrimination based on the fact that a person suffers from a mental health problem, has the potential to impair the fundamental dignity of that person as a human being, or to affect them in a comparably serious manner. Consequently, discrimination based on mental illness must be treated as a prohibited ground of discrimination. However, as it was pointed out in Hoffmann v South African Airways 2001 (1) SA 1 (CC), it may in some instances be justified to discriminate on the ground of mental illness, if it is proved that the discrimination is based on an inherent requirement of a job. Section 15 of the EEA requires that, when the employer implements affirmative action measures, he/she must make reasonable accommodation for people from designated groups, in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer. Section 1 defines “reasonable accommodation” as “any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment”. Section 6(3) of the EEA provides that harassment is a form of discrimination and is prohibited among others on the ground of disability or any other arbitrary ground. Harassment is also a form of misconduct. The employer is required to take reasonable steps to prevent harassment and failure to do so, the employer is liable for such harassment. Where an employee who has a mental illness, commits an act of harassment against another employee, the employer should take into account its duty to reasonably accommodate the offending employee, the duty to take steps to prevent harassment and the fact that it may be automatically unfair to dismiss an employee for misconduct which was committed because of mental illness.