Constructive dismissal and mental ill health
Case: Sanlam Life Insurance Limited v Mogomatsi and Others (CA12/2022) [2023] ZALAC 15 (17 August 2023)
Facts:
Mr. Mogomatsi was a Senior Penetration Tester: IT Infrastructure Shared Services at Sanlam Life Insurance Limited.
Mogomatsi resigned from Sanlam’s employ and referred a constructive dismissal to the CCMA.
The Commissioner had regard to all the incidents that Mogomatsi had referenced as the reason why he was of the view that Sanlam made continued employment intolerable. The Commissioner found that Mogomatsi had failed to prove that he was constructively dismissed and found that he had resigned.
Labour Court
Aggrieved by this finding, Mogomatsi launched a review application. On review at the Labour Court (LC), Mogomatsi alleged that the Commissioner failed to consider relevant evidence, such as that he was given an ultimatum to apologise to his colleague or resign and that he was mentally ill at the time of his resignation.
The LC found that no weight was given to the employee’s mental health during the arbitration and that, although Sanlam attempted to show that Mogomatsi’s conduct was unacceptable since October 2018, no mention was made of Mogomatsi’s anxiety and depression.
The Court further held that there was no evidence that Sanlam had considered an incapacity/ill health process rather than a disciplinary process in the run up to Mogomatsi’s resignation. In the Court’s view, an assessment of Mogomatsi’s claim should have incorporated the common cause fact of the mental ill health he suffered from at the time.
Finally, the Court held that on the evidence before the Commissioner, Mogomatsi proved that the employer made the continued employment relationship intolerable, and as such, he was constructively dismissed. The Court ordered Sanlam to pay Mogomatsi an amount equivalent to four months’ salary as compensation.
Labour Appeal Court
Sanlam appealed the decision on the basis that no evidence was presented regarding Mogomatsi’s mental health issues during the arbitration proceedings and therefore the Labour Court erred in deciding the matter on that basis. Furthermore, Sanlam was never called upon to defend the case that it had failed to treat Mogomatsi with the necessary sensitivity due to his mental illness, thus rendering his employment intolerable.
The LAC restated that in constructive dismissal disputes, a two-stage approach is normally followed. First, the employee must prove that the employer effectively dismissed them by making their continued employment intolerable.
This is an objective test in terms of which the employee need not prove that they had no choice but to resign, but that the employer made continued employment intolerable. The conduct of the employer towards the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with it. Second, after the dismissal has been established, it is then necessary to decide whether the dismissal was unfair.
The LAC found that that, in the case at hand, Sanlam had to have been aware of the mental distress of Mogomatsi. Only if an employer is aware of an employee’s psychiatric illness and is indifferent or insensitive to it, thereby making continued employment intolerable, might a proper case for constructive dismissal be established.
The Court stated that an employer must always be vigilant and act sensitively when it becomes aware or ought to be aware of a particular susceptibility or vulnerability of an employee. In a case where the employee claims constructive dismissal based on psychiatric ill health, the employee must prove that the employer was aware or ought to have been aware of the employee’s psychiatric ill health.
In upholding the Sanlam’s appeal, the Court held that the issue of mental ill health was not common cause and that no evidence of such mental ill health had been raised at the disciplinary stage whatsoever. It was only after his resignation that the medical practitioner certified that the Mogomatsi had resigned due to stress.
Key takeaways
If an employee resigns and alleges that they have been constructively dismissed while suffering from mental ill health, the employee must prove that the employer knew or ought to have known of the employee’s mental ill health. Where the employer is aware of the employee’s ill health and is indifferent or insensitive to it, thereby making continued employment intolerable, a case for constructive dismissal may be established.
When an employer becomes aware of an employee’s mental ill health, it must be vigilant and deal with such employee sensitively. This includes taking into account an employee’s known mental ill health in deciding how to deal with issues of performance or misconduct. Where appropriate, an employer may need to consider an incapacity process.
