Mental disability epidemic now at ‘proportions of the HIV crisis’
Toxic workplaces are making people sick, resulting in suicides, incapacity, absenteeism and insubordination
Mental disability has reached the epidemic proportions of the HIV and Aids crisis more than 20 years ago and should be tackled in the same way, says Peter Strasheim, a lawyer specialising in disability and incapacity law.
The long-overdue conversation about mental health in the workplace is being driven by suicides, court judgments and compensation rather than “dignity, equality, equal opportunity, freedom and non-stigmatisation”.
“A combination of lack of trust in the workplace, mental health issues and societal pressures is a toxic mix resulting in escalated levels of conflict in the workplace,” says Tanya Venter, director of Tokiso, an independent dispute resolution company.
“We have seen a material increase in companies following incapacity proceedings against employees in terms of schedule 8 of the Labour Relations Act [LRA],” she says.
The law requires that a company reasonably accommodates somebody suffering from ill-health. Reasonable accommodation is “determined by the nature of their work, the nature of the company, the size of the company, their skills, what position they hold and a whole lot of other factors”, Venter says.
When an employee informs an employer of a disability that is affecting their work, the company has an obligation to offer reasonable assistance and reasonable accommodation. However, employees often refuse to acknowledge that they have a problem and the employer is not entitled to probe or seek out information without permission, so a situation arises in which an employer suspects the employee of feigning illness and the employee suspects the employer of trying to get rid of them.
Strasheim, who wrote the legal aspects of the Employment Equity Act (EEA) disability code, says many people with a mental health condition are not aware that their diagnosis may constitute a disability under the EEA. Fear of stigma, bullying and labelling or job losses also inhibit disclosure.
Venter says: “The Commission for Conciliation, Mediation and Arbitration and bargaining councils are hearing about 220,000-240,000 cases a year. About 75% of those cases are individual dismissal cases.”
The majority of dismissal cases are to do with misconduct. The second-largest category is incapacity, such as ill-health. Venter believes that ill-health, and in particular mental illness, may be a factor in many misconduct cases.
In professional services, insubordination is the most common form of misconduct for which employees are dismissed. Venter says insubordination cases are “often as a result of high stress, society pressures and anxiety, which elevates tensions between a boss and a subordinate”.
She urges employers to seek assistance as soon as they notice that an employee is struggling. “This may include turning to HR. Alternatively, if trust levels are low or employees are unresponsive to offers of assistance, independent facilitators or mediators may be able to assist in unlocking resolutions,” she says
HR and industrial relations managers are typically inadequately trained and illequipped to deal with disability, Strasheim says.
“They don’t understand the link between incapacity under the LRA and disability under the EEA. The EEA is about employing people with disability and retaining them, whereas the LRA is about the dismissal of people with incapacity in the form of illhealth or injury.”
Strasheim, who works closely with psychologists and psychiatrists and is on the referral network of the SA Depression and Anxiety Group, says employers who don’t manage mental disability face reputational risks, labour litigation and compensation awards, complaints about EEA noncompliance and safety inspections.
Company directors are personally liable under the Companies Act, Strasheim cautions. Moreover, if an employee with a disability is dismissed before an application for a disability benefit has been submitted, the employer can be held liable for the money that would have been paid out until the employee reaches retirement age or dies.
Alphonse Kanda, a medical practitioner and logotherapist who works in public health and rural clinics, says the distinction between the meaning of work, a job and labour is part of the problem. “Work is a creative value that you share with other people; a job is what you do for the sake of getting money; and labour is close to slavery,” he says. The job mentality has taken over and it’s making people sick.”
Companies rely on the Occupational Health and Safety Act, Kanda says, but the act covers physical safety, not emotional and psychological safety. “I think employers know the workplace is unhealthy,” Kanda says, “but they don’t want to admit it because it means they have to compensate people they have made sick.”