INTRODUCTION

In labour law, the classification of a dismissal as either misconduct or incapacity is pivotal, as it impacts both the required procedure and the substantive fairness of the termination. This distinction rests fundamentally on the presence of fault (blameworthiness) versus ability (no-fault).

CORE DISTINCTION

Misconduct assumes that an employee wilfully or negligently breached a workplace rule they could have followed. Conversely, incapacity “has nothing to do with blameworthy conduct but has everything to do with the ability to do the job”¹. In the matter of ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman: the test to determine dismissal of an employee is -, “Did the employee try but could not?” (Incapacity) versus “Could the employee do it, but did not?” (Misconduct).²

MENTAL ILLNESS: THE “INEXTRICABLY LINKED” TEST

When mental illness manifests as behavioural offenses (e.g., insolence or absenteeism), the lines blur. The Labour Appeal Court in Legal Aid South Africa v Jansen established that if misconduct is “inextricably intertwined” with a mental condition like depression, the employee lacks the volition required for misconduct.³ In such cases, the dismissal is substantively unfair if treated as disciplinary measure; it must be managed via the non-adversarial, consultative incapacity procedures outlined in Items 10 and 11 of the Code of Good Practice: Dismissal.⁴

THE ONUS OF PROOF AND “CONATIVE ABILITY”

However, a medical diagnosis is not a free pass. As illustrated in Pahlanga v Petroleum Oil and Gas Corporation of South Africa, the onus remains on the employee to prove that their medical condition incapacitated them.⁵ If an employee claims illness but cannot prove it affected their conative ability (the willpower to act in accordance with their understanding), the employer may proceed with disciplinary action. Furthermore, as confirmed in Sanlam Life Insurance Limited v Mogomatsi, an employer cannot be liable for constructive dismissal or unfair treatment if they were unaware of the employee’s mental condition.⁶

DISABILITY AND ACCOMMODATION

Employers must also distinguish between incapacity and disability. As the Labour Court noted in Standard Bank of SA v CCMA, dismissing an employee who is incapacitated (unable to work) is fair if accommodation fails, but dismissing an employee who is merely disabled (impairment requiring accommodation) is unfair.⁷ The employer is obliged to attempt “reasonable accommodation,” adopting a “pragmatic common-sense approach” to adapt duties or the environment before considering dismissal.

CONCLUSION

Ultimately, employers must pause disciplinary hearings if there is a credible possibility that the “misconduct” is a symptom of mental illness. They must pivot from an adversarial blame-seeking process to an investigative inquiry into the employee’s medical ability to perform.

Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case-by-case basis and you should consult an attorney before taking any action contemplated herein.