The Department of Justice and Constitutional Development has fired a former senior assistant state attorney whose anxiety, depression and bipolar disorder spiralled out of control for “absconding” from work even though he was booked off by a doctor.
Attorney Darren Sampson, 45, said he has asked the department repeatedly in the past few years to medically board him, but his employer ignored his requests. He has been booked off work by psychiatrists and other medical specialists for much of the time since 2017. In late 2019, a doctor declared him medically unfit to work until 18 April 2020. He said he sent this medical certificate to his employer, but received no reply. On 21 February, the sheriff of the court came to his home to instruct him to report for work the following Monday or face dismissal.
Sampson went to the department’s human resources office on 24 February, after receiving the summons, to tell them again that he had been declared medically unfit to work. “I sat there for the whole day without success as they refused to see me without an appointment,” he said. Sampson then emailed the department to say he would return in April, as per his doctor’s note.
That same day though, worried about his income, Sampson applied for an urgent interdict to stop the department from dismissing him. But it said Sampson was “jumping the gun” and that the matter was not urgent. His case was struck off the court roll.
The department stopped paying Sampson’s salary in April, saying he had been dismissed. It drew on a “deemed dismissal” clause from the Public Service Act that says public servants who abscond from work for more than one month will be automatically deemed to have been dismissed, saying Samson had absconded and effectively dismissed himself.
Several government departments have already lost labour court cases after using this clause to fire sick employees, as it is not intended for use in cases of long-term illness.
Because the clause relies on the employee being absent from work, the Public Services Association union of which Sampson is a member suggested he go to work after being fired to prove that he had not absconded. But when he arrived on 27 May, Sampson was sent away after being told Minister of Justice and Correctional Services Ronald Lamola was reviewing a report on his dismissal and was the only person who could decide whether to reinstate him or not. Sampson has been in unpaid limbo since then.
Sampson said his working life has been “miserable” at the department, because he has been told by some colleagues that he is “mentally unstable” but at the same time also accused of faking his illness to get out of work. Sampson says he doesn’t know if he will receive any financial benefit from being medically boarded, but is hopeful that he may at least receive enough funds to cover the medical costs of his bipolar mood disorder, which is more than R1 500 a month in medication, about R10 000 a year in quarterly visits to psychiatrists and up to R75 000 if he is hospitalised for three weeks after a major episode.
How Sampson is affected by bipolar disorder was evident in online court last month, when he represented himself in a lawsuit against the department and magistrate Audrey Mpofu.
He had brought a case against Mpofu for crimen injuria and damages after she referred to him as a “thing” during a 2014 hearing. “You are incompetent, you are cheeky … You write a whole lot of nonsense,” she said, laughing. “Inspector, take this thing out of my court.” But acting Judge Tasneem Moosa dismissed his case after Sampson’s former attorney applied for it to be withdrawn without his knowledge.
Unable to afford a new attorney, Sampson represented himself. The stress and the judge’s refusal to keep the case on the court roll led to an outburst that then went viral.
Bipolar disorder can be managed with medication in many cases, but work is a trigger for Sampson.
He said he has provided his employer with numerous medical certificates over the years, when psychiatrists and occupational therapists said he needed more support from his managers and a reduced workload. One occupational therapist recommended that he be transferred to another department, saying that if Sampson was “expected to return to the same environment … he will not be able to perform his job”. The department of justice has not followed these recommendations.
Lack of best practice
Based on fair procedure in employment law and the precedents in four labour court matters, the justice department has not followed best practice in Sampson’s case.
Mvuyiso Talatala is a psychiatrist at the Dr SK Matseke Memorial Hospital in Soweto and an honorary lecturer in the University of the Witwatersrand’s department of psychiatry. “Mental illness and the associated disability is often stigmatised in the workplace,” he said.
“The reasonable process that the employer should follow is to initiate the boarding process and get an opinion of a non-treating psychiatrist to review the patient’s impairment. My view is that the patient … would have been discriminated against by his employer if there was no assessment by the employer, including a second opinion by a non-treating psychiatrist and all other appropriate professionals,” said Talatala.
Forensic psychologist and workplace mental health consultant Martin Kassen said non-performance or an absence from work often happens after an employee has a psychiatric episode. “What then follows is the unfortunate inaction and avoidance by management to address the functional impact on the employee’s work life. Sick leave, special leave and unpaid leave are all slowly depleted. Ultimately, such inaction fuels disengagement, distrust and eventual acrimony for all parties.
“To some extent, one can share the frustration of an employer who is confronted with an employee who cannot execute their job functions. However, when such non-performance is the result of a credible chronic mental health condition, it becomes crucial that any action taken does not reinforce discrimination or constitute harassment and/or unfair dismissal,” Kassen said.
Justice department spokesperson Chrispin Phiri referred to the Department of Public Service and Administration guidelines for the medical boarding of public servants with major depressive disorder.
These guidelines say it is only considered after “optimal treatment” fails, that is, “the highest dose [of medication] that the patient can tolerate” for at least six weeks and psychotherapy. Patients who don’t respond to that must undergo electroconvulsive therapy or explain why they don’t want shock treatment before the government will consider their application.
For public servants with bipolar disorder, the decision to medically board should “be delayed until optimal recovery has taken place. Factors such as the presence of residual symptoms, degree of insight, nature of employment and likelihood of relapse need to be considered when assessing long-term impairment”.
Sampson said he had never been told of these criteria, even after one of the department’s medical experts examined him and found him unfit for work.
According to Kassen, different cases require different treatment. “An employee’s choices about their medical care or treatment rests solely with them, granted they have the requisite ability to make these decisions. Rather than treatment prescription, what needs to be explicitly stated by an employer is the functional impairment on the employee’s work role … Decisions on permanent medical incapacity cannot be made on the basis of a single psychiatric report. In an ideal scenario, management would intervene early to provide support and reasonable accommodation for the employee to adapt to their work life.”
When asked why the department had not initiated the medical boarding assessment, Phiri first said Sampson was not unwell. “I am advised that Mr Darren Sampson’s ability to draft legal papers and represent himself in both Pretoria and Johannesburg high courts … has put [a] cloud for his alleged sickness. Judges have rejected such excuses and as such his matters were dismissed.”
When told the transcripts of the court cases did not show the judges making any comment at all on Sampson’s mental health, Phiri said Sampson had not submitted medical certificates and therefore was not approved for temporary incapacity leave.
When sent the medical certificates, Phiri said Sampson had not filled in the correct leave forms. Phiri maintained that Sampson had been on “unauthorised leave for one year and 99 days” because, even though he had supplied sick certificates, he had not been granted leave.
Phiri then said, after being told that Sampson was facing a deemed dismissal, that he should have gone to work even though he was certified medically unfit for work. Once there, Sampson should have applied again for temporary incapacity leave, which is a prerequisite for starting the medical boarding process, he said.
When told that Sampson went to work on 27 May but was sent away and told to wait for Lamola’s decision, Phiri referred the question to another department official who did not reply.
The internal department report on Sampson’s case that Lamola was said to be reviewing in May now appears to have gone missing.
On 4 June, acting director general for justice Jacob Skosana emailed Sampson to say he would consider the report and respond by 8 June. But Sampson never heard from him again. Phiri said in early October that the report was still “en route” to Lamola, and then later said that “as we speak, the minister is not in possession of the report. The department has to refer it to him.”
“I was never absent without the knowledge of my employer. I was accessible at all times and had provided a medical certificate which showed I had not absconded,” said Sampson. “I played open cards. I even provided them with powers of attorney to directly access my medical records with my psychiatrist.”
Sampson’s psychiatric medication has now run out, as his medical aid was terminated after he was fired.
Department of Public Service and Administration spokesperson Kamogelo Mogotsi said she would forward a response that had been drafted for director general Yoliswa Makhasi, once Makhasi had approved it, but still had not done so by the time of publication.
Correction, 12 February 2021: This article previously said Darren Sampson was fired by the Department of Justice and Correctional Services instead of the Department of Justice and Constitutional Development.