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Mental health and the labour law in SA

Marlene De Lorme - Friday, September 27, 2019


A guest article by Carol Hardijzer, Head: Employee and Industrial Relations, FNB.

In terms of the Labour Relations Act there are three grounds for dismissal, namely misconduct, retrenchment and incapacity. Employment terminations due to misconduct still contribute to most of the dismissals in organisations. Employment terminations due to ill health incapacity is few and far between – something South African organisations or Human Resources workforce do not deal with on a regular basis.

Incapacity, brought on by either poor work attendance or poor performance due to alleged ill health, can be defined as the failure or inability of a worker to carry out a job according to expected standards. Although conditions of ill-health do eventually contribute to under or poor performance, the focus here remains on incapacity terminations due to alleged ill health. There are cases where incapacity versus non-performance could be a grey area.

In many instances, employees may apply for ill health incapacity or ill health retirement through their Personal Health Insurance (PHI), to which employees, in many instances contribute via their pension fund. 

In analysing one Health Insurer’s ill health application data for the period 2006 to 2014, it was found 32% of applications for ill health boarding were declined by the insurer. It is this almost a one third decline that is relevant to this article plus those incapacity employment terminations that have not been through the ill health application process at the time an employee is called to an incapacity enquiry. It is the author’s stance that most of the 32% of employees referred to above are disengaged and therefore opportunistic and potentially unethical in their elected response to their employment. 

The majority of HR/IR practitioners are also aware of the recent CCMA matter where the commissioner found against the financial industry employer for not doing enough to accommodate the employee concerned elsewhere in the organisation. This case has resulted in HR practitioners potentially having become jittery, adding to a general inaction from the HR community on incapacity matters. It is however not all doom and gloom. Indeed, organisations need to reasonably accommodate employees, but the law here is not one sided as the converse also applies - the employee needs to reasonably accommodate the organisation as well (in terms of work attendance, productivity or finding alternative solutions).

According to a recent South African Board for People Practice (SABPP) Twitter message 4 out of 10 employees worldwide are disengaged. This is more than likely applicable for the South African workforce as well. So this raises the question – what are the contributing factors resulting in this level of disengagement? The answer is potentially twofold, namely socio-economic circumstances of the employee as well as psychological factors.

Socio-economic factors:

1. Commuting distances
have an impact on both staff loyalty and flexibility. International research has indicated that there is strong link between length of commute and likelihood of defection. In the S.A. context this percentage stands at 1 in every 3 employees (flexibility.co.uk). The author also hypothesises that the more junior an employee and the further they stays from work, the more likely it would be that a person will become disengaged and show symptoms of potential pathology.Including travelling time, some employees spend more than 12 hours at work. This potentially results in burn out depending on how their work is structured. 

2. Grudge employment - due to high unemployment, and just for the sake of having a job, many take up employment just for the sake of generating some income, but the person does not gain any job satisfaction from such role;

3. Financial distress – many, especially younger generation employees, find it difficult to manage their financial affairs and/or discipline themselves resulting in them being caught up in a spiral of fending off debt collectors, contributing to disengagement in the workplace;

4. Number of family members dependant on income of the employee. With the high rate of unemployment in the South African context, it is known that some employees may support unemployed family and society members upwards of 10 individuals.

So, assuming that the factors above are key socio-economic factors for employee disengagement, this raises the question – what are the primary contributors in terms of psychological factors? 

Psychological factors:

Victor Frankl was one of the first observers of how psychosocial factors influence immune functions. Whilst interned in a concentration camp, Frankl observed a mind state of despair, which preceded the development of disease by his fellow inmates. This resulted in his theory that a hopeless-helpless mind state could give rise to a chemical process which suppressed the immunity (Daniels, themindbodycentre).

Linked to this is: 

1. Self determination theory (SDT) – our natural or intrinsic tendency to behave in effective and healthy ways – intrinsic motivation – psychological well being.

2. Psychoneuroimmunology (PNI) - PNI in principle is the study of interactions among the mind, the nervous system and the immune system. The mind, or psyche, involves thoughts, emotions, experiences, and ideas whilst the nervous system involves the brain, the spinal cord and the nerves throughout the body and the immune system consists of organs and cells that defend the body against invaders. The mind and the immune system communicate through the peripheral nervous system, hormones and cytokines (any number of substances which are secreted by certain cells of the immune system and have an effect on other cells). This communication allows the immune system to be responsive to psychological factors and allows the immune system to signal the brain (Solberg-Nes & Segerstrom, 2004).

It could therefore be argued that certain predisposing emotional states like depression, anxiety and chronic stress etc. is due to the PNI factor where employees become totally disengaged from work. Put differently, they simply do not possess the required internal motivation to attend work and will find any “little” medical reason not to attend work. Although it is not denied that most individuals potentially have a real underlying medical condition, these conditions are typically not such that it justifies the employee to stay away from work for extended periods.

It is widely recognised that acute and chronic stress has an impact on the immune system. Acute stress may have a stimulating effect on the immune system, while in the case of chronic stress (in particular depression), the immune system may be down-regulated (Solberg-Nes & Segerstrom, 2004) – it therefore depends on how the individual deals with occupational stress and stress in general.

How some of the above spell themselves out in the workplace are cited below as examples:

Example 1:

An employee stays away from work for a period of some 5 months, without sufficient medical certification, claiming to suffer from major depressive episodes. She refuses to have an independent physician examine her or apply for medical boarding. During the incapacity enquiry she provides a list of medication she was on – none of which were related to her alleged psychiatric condition. The organisation erred in one aspect - by accommodating her non-work attendance for the period of 5 months. During the enquiry she claims that she was waiting for the employer to request her to return to work. Although the employee was dismissed for incapacity (and upheld at the CCMA), this was probably more a misconduct matter than an incapacity matter.

Example 2:

A manager, who has become highly dysfunctional in the workplace due to an injury and psychiatric conditions, is placed on temporary incapacity but is found sufficiently fit to return to work after 18 months due to a medico legal report indicating that the primary reason for his condition was the host of medication he was on – all unregulated/uncontrolled. The opinion, all the way along, has been that the employee presented with classical hypochondriac symptoms. Again, a performance incapacity route instead of the health incapacity route could have been a more optimal approach.

Example 3:
A management information specialist, who has her request for incapacity turned down applies for a role elsewhere in the organisation (and gets accepted).  Although it was found that she suffered of post natal depression for a short period, the reason provided for her ongoing absence was: She does not like her manager and did not want to return to work. She also never saw a medical professional for her alleged condition. Again, the question arises – misconduct or incapacity due to ill health?

Example 4:
A male call centre agent, within a 12 month period, has attended work for less than 40% of the time, with a consecutive 5 month absence just prior to his incapacity enquiry. Insufficient medical reports were provided. The employee stated he has pains and aches. At one stage he obscurely argues that he could not attend work as he has pain in his left thumb – due to a condition referred to as fibromyalgia.  Medical certificates presented clearly stated that his condition is unknown. The employee rejected the assessments of all medical practitioners. He manages to get booked off by a doctor for an indefinite period. The employee makes no attempt to return to work but happily attends the gym (against doctors orders allegedly). Ill health boarding is declined and the employee had his employment contract terminated after going through an incapacity enquiry. Again it could be argued that the misconduct route, along the line of unauthorised absence, could have been more effective. 

These examples potentially confirm that organisations err in many instances by putting an employee through an internal incapacity enquiry where the misconduct route would have been a more optimal approach.

Are HR practitioners equipped to deal with incapacity related absences?
 
An employer is your responsibility to ensure that proper medical assessments are obtained before following the route of dismissing an employee for reasons of incapacity or failure to meet work performance standards. Any judgement made by the employer, without such an assessment, cannot be viewed as objective or reasonable. 

Due to complexity and uniqueness of each case, line managers and HR are inclined to tread water, resulting in inaction and deterioration in terms of the employee’s behaviour and level of engagement, often resulting in months passing before action is taken.

For the HR community, line managers, as well as coaches, it is vitally important to react timeously and proactively by facilitating optimal re-framing for the disengaged employee. The HR community also need to develop knowledge of the correct procedures to follow in respect of incapacity due to ill-health or incapacity due to poor performance. 

Depending on individual circumstances, the exit process does not always need to be the incapacity route in that, as per examples cited above, the non performance or misconduct route could have been better alternatives. This will remain a delicate subject.

Ultimately, organisations employ people to add value.

How to manage individuals who show pathology in terms of disengagement:

Act soon.  Engage with employee and investigate extent of ill health or injury (degree of incapacity).
Refer to a wellness program and/or clinical support.
Guide, coach and performance manage – and keep record.
Determine whether permanent or temporary situation.
Determine alternatives short of dismissal - Investigate the availability of any other suitable alternative role.
Where injury took place whilst on duty, the duty on the employer to accommodate becomes more onerous.
Facilitate Personal Health Insurance boarding (typically linked to the pension fund) where applicable.
Consider granting additional sick leave for employee to be taken up at in a clinic.
Consider a role closer to home.

Conclusion

Failing all the above, the organisation will have no other alternative but to terminate the employment of employee’s that show clear signs of this new workplace phenomenon.

Although all very time consuming and often resource intensive, effective management of illness, absence, disability, negative presence and non attendance remains critical. A multidisciplinary approach, driven by effective systems and potentially supported by external vendors, ensures prompt, appropriate responses and resolution.

Here at KR, we’ll be hosting a Mental Health in the Workplace Seminar on 18 of February in Durban and on 5 March in Cape Town.

This unique and timely seminar will serve as an important platform for the exchange of new ideas, best practice examples and insights on identifying and managing a range of mental health issues in the workplace. The programme is designed to assist organisations in reducing stigma and bias on mental health as well as unpack strategies for implementation in the workplace.

You can learn more about these events by clicking here: Durban | Cape Town or alternatively by contacting Busie Mjimba on +2711 706 6009 or busie@knowres.co.za.

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