Amandla Makhongwana

Amandla Makhongwana is an Associate in the Bowmans Employment & Benefits Practice in Johannesburg. 

Amandla has assisted the Practice with advising corporate and public sector on matters related to various aspects of employment and administrative law, which include but not limited to, review proceedings in the Labour Court, unfair dismissals, disciplinary enquiries and litigation in private arbitrations in the Commission for Conciliation, Mediation Arbitration (CCMA) and the South African Local Government Bargaining Council (SALGBC).

Amandla has assisted in conducting investigations on behalf of clients into various employment-related issues, drafting investigation reports for such clients where necessary and advising clients on appropriate action in the circumstances. Amandla has also assisted in instituting disciplinary action measures against employees of various state-bodies and parastatals.

Amandla is a member of the Golden Key Society and a member of the South African Society for Labour Law (SASLAW). She has LLB and LLM degrees from the University of the Witwatersrand.

The workplace is changing significantly as new trends are emerging, including the focus on mental health.

Mental health refers to the state of well-being in which we understand our own abilities and capabilities to cope with the normal everyday stresses of life, engage with work more productively, reach our full potential, and contribute to our respective communities.[1]

The Mental Health Care Act 17 of 2002, defines ‘mental health status’ to mean ‘the level of mental well-being of an individual as affected by physical, social and psychological factors and which may result in a psychiatric diagnosis’.

People who fall into the Traditionalist generation are generally understood to be loyal to the organisation, a trait that is evidenced by their substantial tenure in the organisations in which they work.[2] Since members of the Traditionalist generation work past the normal retirement age, they see their careers as an opportunity and have respect for authority and the hierarchical structure.[3] The Traditionalists believe change is only necessary when something is broken. They face musculoskeletal conditions, heart conditions, poor sleep, visual and/or hearing impairment, and are also affected by the bereavement of loved ones.[4]

Members of the Baby Boomer generation are perceived as being loyal to the teams that they work with. They are characterised by their competitive spirit and take pride in their work practices. To the Baby Boomers, careers translate into self-worth. As a goal-oriented demographic, they have a general ‘let me show you what I can do for you’ attitude.[5] What concerns the Baby Boomers is the development of disease and disability as they advance in years. There is also a high suicide rate in this age demographic.[6]

The Generation Xers currently make up the largest segment of the workforce and are appointed in the majority of leadership roles.[7] They are loyal to their teams. Generation Xers face age-related health issues, including but not limited to, chronic disease, weight gain and menopause. Generation Xers also play a crucial caregiver role to their children and ageing parents, which has significant financial implications. The strain from work and family life often exposes Generation Xers to mental health ailments and they are at risk of sleep deprivation, anxiety-related disorders, depression and even substance abuse. Generation Xers would thrive in a workplace that embraces work-life balance.[8]

Millennials are loyal to their colleagues and tend to respect authority figures who demonstrate competence.[9] Millennials view their careers as an opportunity to contribute and add value. They face self-esteem and weight issues, sleep deprivation owing to the increase in social media content consumption, financial health worries as the economy constantly moves against them, as well as mental health issues.[10] In this regard, they are attracted to organisations that have equitable treatment, flexibility and transparency built into their cultures. This demographic will actively pursue promotions and jobs with higher compensation.[11]

Members of Generation Z are loyal to their experience and are invested in their careers.[12] While people who fall into Generation Z are found to respect processes and follow direction, they desire to be engaged.[13] This demographic is more agile and tech-savvy, they seek rules that foster their independence and entrepreneurial approach to work. Similar to Millennials, the Generation Z demographic also suffers from self-esteem, weight issues and financial worries, which exacerbate their exposure to mental health issues.[14]

A properly managed team of all these generations may result in high performance and increased productivity. However, due to the limited understanding of how these generations interplay with one another, employers are often faced with ethical lapses, increased mental health issues and harassment cases owing to miscommunication and misalignment among the age demographics resulting in toxic work environments.

Toxic work environments have the propensity to result in decreased work performance, productivity and output; increased error rates; poor decision-making; and deterioration in planning and control of work. Employers could also be adversely affected by the increase in absenteeism and presenteeism and/or ‘quiet quitting’ and the actual resignation of talented employees.[15]

Our law places various obligations on employers to protect and promote employee well-being. In terms of the Occupational Health and Safety Act 85 of 1993 (OHSA), every employer has the duty to maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees.[16]

In the attainment of the OHSA objectives and in compliance with international obligations, South Africa has adopted the SANS 45001:2018 (based on the ISO45001), an Occupational Health and Safety Management System that is applicable to any organisation, regardless of size, type, business activities, industry and the needs of employees.[17] Employers are encouraged to implement SANS 45001:2018 with consideration to the ISO45003:2021, which addresses Occupational Health and Safety Management: Psychological Health and Safety at Work – Guidelines for Managing Psychosocial Risks.[18]

Section14 of the OHSA provide that employees have the duty to look out for their own safety and that of their colleagues. Section 37 of the OHSA provides that employers will be vicariously liable for the OHSA contravening conduct of its employees unless the employer proves that the employee acted without and/or in excess of a mandate or authority, and/or that all reasonable steps were taken by the employer to prevent the contravention.

The Employment Equity Act 55 of 1998 (EEA) provides that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more listed grounds, including disability. In this regard, the Code of Good Practice on the Elimination and Prevention of Harassment in the Workplace, aims to eliminate and prevent, among other things, the intolerance of psychological, medical, disability or personal circumstances; spreading of malicious rumours; and/or engaging in conduct that humiliates, insults or demeans an employee.

Non-compliance with the OHSA and/or the EEA has adverse consequences. An employee found guilty of contravening the OHSA could be subjected to a fine of up to ZAR 50 000 or to a period of up to one year in prison, alternatively to both the fine and imprisonment. An employer contravening the OHSA could face a fine of up to ZAR 100 000 or to a maximum period of two years in prison, alternatively to both the fine and imprisonment. [19]

Section 60 of the EEA provides that an employer may be held vicariously liable for the actions of its employees in breach of the EEA or the Code, where after harassment against an employee is reported, the employer fails to consult all the relevant parties and take reasonably practicable steps to eliminate the harassment.

Reshuffling the workplace to create awareness and eradicate the stigma on mental health may be uncomfortable for some employees, so as a starting point, management can use Dr Gary Chapman and Dr Paul White’s five languages of appreciation in the workplace, which are:

Employers who show their employees that they are valued and appreciated will benefit from the retention of talent, increased turnovers, and reduced company overheads due to fewer days lost to absenteeism or presenteeism.

Employers and employees are encouraged to understand the dynamics and diversities that affect mental health at play in our various workplaces. Employers and employees need to collaborate to find creative solutions to explore the benefits of such diversities, transform the workplace and avoid conflict and/or disciplinary processes.

The focus on mental health presents willing employers and employees with a unique opportunity to achieve their objectives in an efficient and sustainable way. However, all parties must put in the work and take it one step at a time.