Incompatibility of employees
A company has an employee who continually lays grievances against management, lodges complaints at the Department of Labour, and refers disputes to the CCMA (in which he is always unsuccessful). Management is frustrated with the employee but cannot find enough evidence of any offence and the employee does his work reasonably well. However, his actions are causing disharmony amongst his fellow employees and with management. Management feels that they cannot tolerate such an employee but are wary to proceed with any action against him as they know that they will face another referral to the CCMA. Such an employee may have become incompatible with the Company.
Can an employee be dismissed for incompatibility?
Incompatibility has been recognized by our courts as a valid ground for dismissal. It is more often categorized as a dismissal for incapacity, if the employee concerned is not to blame for the conduct that renders him incompatible with his colleagues. On the other hand, if the employee concerned is to blame for his behaviour, termination of his employment can be viewed as a dismissal for misconduct. It is important to be aware of these distinctions as it dictates the procedure that must be followed in dealing with the employee.
What is “incompatibility”?
It arises when an employee is unable to work in harmony with his colleagues, or is unable to adapt to the “corporate culture” of the company. 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 other employees.
When can it be said that an employee has become “incompatible”?
Employees become incompatible when their colleagues, subordinates or superiors are unable to tolerate their behaviour. Incompatibility therefore reflects a breakdown in interpersonal relationships. Incompatibility can seldom arise from an isolated incident, unless the employee’s conduct on that single occasion was so grossly unacceptable that it resulted in the permanent damage the working relationship. Although incompatibility may at times be difficult to identify, it is in essence an irreconcilable breakdown in the working relationship caused by personality differences, resulting in the employee’s inability to work with others. When the continued employment of the employee concerned causes disharmony in the workplace, the employer is entitled to address the problem, and if it does not improve, to remove the cause of the disharmony by dismissing the employee. The Appellate Division of the former Supreme Court has gone so far as to suggest that the contract of employment cont ains an implied term that the employee will not act in such a way as to cause disharmony and a breakdown in the employment relationship.
When will a dismissal for incompatibility be substantively fair?
The test for the substantive fairness of a dismissal for incompatibility may be formulated as follows:
1) Did the employee’s conduct cause 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.
When will a dismissal for incompatibility be procedurally fair?
Where there is incompatibility, the employee must be advised:
1)What conduct allegedly causes the disharmony;
2)Who has been upset by the conduct;
3)What remedial action is suggested to remove the incompatibility;
4)That the employee be given a fair opportunity to consider the allegations and prepare a reply thereto;
5)That he be given a proper opportunity of putting forward his version; and
6)That where it was found that he was responsible for the disharmony he must be given a fair opportunity to remove the cause for the disharmony.
In Jabari v Telkom SA (Pty) Ltd  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 here above. 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