INCOMPATIBILITY AS A VALID GROUND FOR DISMISSAL?

Employers often have the inconvenience of having to deal with an “incompatible” employee. In other words an employee who does not fit the company culture or creates some sort of disharmony in the workplace. Our courts have recognized incompatibility as a valid ground for dismissal.

It is important to distinguish between incompatibility as a form of misconduct or incapacity, as a wrong classification may lead to an unfair procedure being used.

What is “incompatibility” and when does the employee become “incompatible”?

It is the instance when an employee is unable to maintain a harmonious relationship with his / her colleagues, or is unable to adapt to what is referred to as the “corporate culture” of the company.

Employees become incompatible when their colleagues are constantly unable to tolerate their behaviour. The rationale for the dismissal of such employees is the right of an employer to expect their employees to adapt to the employer’s norms and standards, and to conduct themselves in a manner acceptable to their colleagues.

When will a dismissal for incompatibility be fair?

Section 185 of the Labour Relations Act proclaims that: “Every employee has the right not to be unfairly dismissed.” For a dismissal to be fair the employer is required to follow a fair procedure and the dismissal must be for a fair reason (what is referred to as substantive fairness).

The test for the substantive fairness of a dismissal for incompatibility may be formulated as follows:

• 1.Did the employee’s conduct cause is the disharmony or tension in the workplace?
• 2.Was the disharmony and tension the result of the employee’s behaviour?
• 3.Was the disharmony and/or tension irremediable? (Could it be corrected?)
• 4.Did the disharmony and/or tension have an adverse or potentially adverse effect on the employer’s business?
• 5.Was the termination of the employee’s contract the only reasonable way in which the cause of the disharmony and/or tension could be removed?

The incompatibility must have caused an irremediable breakdown if dismissal is to be accepted as a fair solution to the problem. Dismissal for incompatibility is an act of last resort; dismissal is not accepted as justified if the employee has not been counselled.

In order to ensure procedural fairness in a dismissal for incompatibility, the employee must be advised:

• 1.The type of conduct that allegedly caused the disharmony;
• 2.Who has been upset by the conduct;
• 3.Any potential remedial action to remove the incompatibility;
• 4.That the employee be given a fair opportunity to consider the allegations and prepare a reply thereto; and
• 5.That where it was found that she/he was responsible for the disharmony she/he must be given a fair opportunity to remove the cause for the disharmony.

Case Law

In the case of Lebowa Platinum Mines Ltd v Hill (1998) 19 ILJ 1112 (LAC) co-workers demanded the dismissal of an employee who had insulted one of his subordinates. The employees’ trade union threatened the employer with industrial action if it did not dismiss the employee. Lebowa dismissed the employee on the basis of incompatibility. The Labour Appeal Court found the dismissal to be fair in the circumstances.

In Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC), the employee initiated grievance and legal proceedings against the employer’s management and rejected a voluntary severance package. He was charged with incompatibility and dismissed. The Labour Court stated that an employer is entitled to set reasonable standards pertaining to relationships in the workplace and confirm the approach as described hereabove. However, in this case, the employer’s contention that the employment relationship had irretrievably broken down was not proven by the evidence. The employee’s dismissal therefore constituted victimisation, which rendered the dismissal automatically unfair.

Incompatibility is a valid ground for dismissal in South African labour law however employers should act cautiously when relying on this ground to dismiss employees.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)