Employers who view mental health as a private matter risk more than bad publicity. In three topical matters, the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court have ruled that failing to act on an employee’s distress can amount to unfair behaviour.
In Mogomatsi v Sanlam Life Insurance, the Labour Court found that Sanlam’s indifference to an employee suffering from depression and anxiety made his continued employment intolerable, amounting to constructive dismissal. In Jansen v Legal Aid South Africa, a dismissal for misconduct was ruled automatically unfair because the behaviour was linked to the employee’s diagnosed depression, and the employer had failed to accommodate him and in the most recent case of Le Franschhoek Hotel v CCMA, the Labour Court held that refusing to allow a chef to return to work after suffering a work-related injury following a workplace fire and having developed acute anxiety and depression thereafter, constituted dismissal and that such was unfair. The judgment confirmed that mental illness caused by a work-related incident must be treated with the same seriousness as a physical injury.
These cases demonstrate the strides taken by our tribunals and courts in recognising the serious impact of mental illness and raise the bar on holding employers accountable in relation to matters of mental health.
The employer’s duty of care
The Occupational Health and Safety Act (OHSA) makes it clear that employers must provide and maintain a working environment that is safe and without risk to health. Health includes mental well-being. By recognising mental illness as a work-related injury, the law is recognising that excessive stress, burnout, and persistent occupational strain are not simply HR issues; they are recognised occupational hazards. Employers are required to identify and mitigate these risks through ongoing risk assessments and management systems — the same as they would for physical hazards like machinery or ergonomics.
South African common law reinforces this duty. The employment relationship is built on mutual trust and good faith. When an employer ignores or worsens an employee’s psychological distress, that bond could be broken, and the employer may be found to have breached its duty of good faith.
Working conditions that protect mental well-being
The Basic Conditions of Employment Act (BCEA) provides crucial protection for employees earning below the annual earnings threshold set by the Minister of Employment and Labour. For these employees, the BCEA regulates working hours, rest periods, and leave entitlements, which are key measures that indirectly protect them from fatigue and burnout. It is important to note that employees who earn above this threshold are excluded from these specific limitations on ordinary working hours, overtime pay, and entitlement to rest periods.
Burnout itself is not a formal medical diagnosis in South African law, but its effects are real. Severe burnout that leads to illness or disability still falls under an employer’s general duty to manage risk. In practice, that means proactively identifying psychological hazards, assessing their impact, and acting to reduce them for
Legal protection under the Employment Equity Act
Mental health conditions are explicitly recognised under the Employment Equity Act as potential disabilities. The Code of Good Practice defines “mental impairment” as a clinically recognised condition that affects thought processes, judgement, or emotions. Where such a condition is long-term or recurring and substantially limits a person’s ability to work, it could qualify as a disability under the EEA.
That classification triggers a duty on employers to provide reasonable accommodations where possible to enable the employee to continue working effectively. This could mean flexible working hours, a phased return after treatment, adjusted performance targets, and/or a change in reporting lines. The duty is not limitless, but employers must show that they considered and tested all reasonable accommodations before taking any adverse action. Failure to do so could amount to unfair discrimination in terms of the EEA and could also render a dismissal automatically unfair under the Labour Relations Act.
Process matters
When poor performance or misconduct appears linked to a mental health condition, employers may not be able to rely solely on standard disciplinary procedures. An employer may be required to follow an incapacity process to determine whether the employee is capable of performing their duties, whether reasonable accommodations exist and/or whether the employee can be temporarily or permanently boarded. Only once all reasonable alternatives have been exhausted may an incapacity enquiry be held and if found to be incapable of performing their duties, possibly dismissed.
The courts have been consistent on this point: treating a mental health condition as misconduct rather than incapacity is a substantive and procedural error. The Jansen case set that precedent clearly, and employers should heed the warning.
Policies, culture and prevention
Employers should treat psychosocial risk as part of their Occupational Health and Safety (OHSA) system. Conduct regular assessments, train managers to recognise red flags, and develop clear, confidential reporting procedures. A mental health policy should outline support options, referral pathways, and the process for requesting accommodations.
Equally important is workplace culture, where line managers set the tone. How they respond to stress or requests for support, often determines whether an issue is resolved or festers. Empathy and discretion are vital skills that can and should be developed because they help keep the workplace compliant, trustworthy and human.
Good for business and workplace culture
Addressing mental health at work is as much about empathy as it is about obligation. The OHSA requires employers to maintain a safe and healthy working environment – a duty that extends to psychological well-being. However, genuine understanding is what makes that protection meaningful. When managers respond with care as well as compliance, they build trust and loyalty, reduce absenteeism and strengthen performance.
South African law is evolving beyond physical safety to recognise mental health as a core part of a safe workplace. Employers are now expected to manage mental-health risks with the same rigour as physical dangers. Failure to do so could expose them to claims of, amongst other things, unfair dismissal and/or unfair discrimination.
Written by Lucinda Hinxman, Director: Head of Employment and Labour at CMS South Africa