The Labour Relations Act 66 of 1995 (LRA), read with the Code of Good Practice: Dismissals (Code) recognizes three grounds of dismissal, namely (i) misconduct, (ii) incapacity (in the form of ill-health or poor performance) and (iii) dismissals based on an employer's operational requirements.

The distinction between misconduct and incapacity becomes blurred when an employee alleges that their misconduct or poor performance is as a result of something that they have no control over, for example, alcoholism or a mentalhealth condition such as anxiety or depression.

The Labour Court in Abels v Stellenbosch University and Others confirmed that an employer can dismiss an employee for poor performance provided that an employer has followed a fair process. The judgment further confirmed that a mental health condition such as depression can be considered as a factor for an employee's poor performance, however, it does not shield an employee from being dismissed for poor performance, especially when an employer has followed a fair process and has reasonably accommodated an employee. 

Employees who allege that their dismissal (for misconduct or incapacity) is based on their mental health condition bears the onus of establishing a causal link between the dismissaland their mental health condition.

In this episode of CDH Conversations, Employment Law Director, Yvonne Mkefa and Associate, Thato Maruapula explore whether a mental health diagnosis can protect an employee from dismissal for poor performance, even when the employer has offered reasonable accommodation.