Inside this issue:

•    Avoid constructive dismissal and discrimination claims

Dear Reader

Don’t treat your employee differently if he has a nervous breakdown!

Your employee’s been off work for a month because he had a nervous breakdown. Don’t treat him differently and make things worse when he returns to work. He could take you to the CCMA for constructive dismissal and you will lose! You’ll be guilty of automatically unfair dismissal if your conduct amounts to discrimination because of mental illness. And, you’ll have to pay him even more compensation.

In Marsland v New Way Motor and Diesel Engineering (2009) 30 ILJ 169 (LC), the employer learned the hard way that it can’t discriminate against an employee for mental illness. Here are the details...

Mr Marsland was a marketing manager at the company. He suffered a nervous breakdown when his wife left him unexpectedly while on their family holiday. He spent time in hospital and only returned to work nearly two months later.

Upon his return, he noticed a distinct change of attitude towards him by senior management. They stopped him from performing certain tasks, excluded him from decision-making and gave him menial tasks to do with little responsibility. They didn’t let him take sales calls, or send faxes and denied him access to documents. They effectively shut him out of operations.

The managing director constantly verbally abused him and made it clear he  wasn’t interested in Mr Marsland's personal life.

Mr Marsland put up with the situation for some time because, he said, he needed the job. In the end he feared the possibility of the MD assaulting him after a particularly abusive outburst. . He packed his things, left and didn’t return to work. Instead he lodged a claim for unfair constructive dismissal.

The Court said Mr Marsland had been constructively dismissed because he hadn’t wanted to resign. The way management treated him forced him to leave. The Court found the problem with the employment relationship only developed when Mr Marsland returned to work after he’d been in hospital.  It found the employer set out to destroy the employment relationship. The employer verbally abused Mr Marsland and offended and degraded him in front of other employees.

Mr Marsland didn’t choose an opportunistic time to leave the company and tried to resolve things internally before leaving.

The Court was satisfied that he didn’t have any practical alternative other than to leave his job. The company was guilty of constructive dismissal.

The Court then considered the claim of discrimination. The Court decided Mr Marsland’s mental condition was a significant reason for why the company dismissed him. It had discriminated against him and had to pay him the maximum award of 24 months’ compensation!

Deal fairly with employees who suffer from mental conditions and avoid learning your own expensive lesson..
(By the way, the Labour Appeal Court has just upheld this Labour Court decision in an as yet unreported judgment).

Until next month...

Susan Stelzner
Editor-in-chief: Labour Law for Managers Practical Handbook