By Judith Griessel, Griessel Consulting – Couples who get divorced can do so on the basis of ‘irreconcilable differences’ – they know the relationship does not work, but they cannot necessarily specify any one reason.
It may not be anyone’s fault, but if the breakdown in the relationship cannot be repaired, it is time for a fitting end. So too in the workplace when the employee is incompatible with the employer’s working environment.
‘Incompatibility’ has been referred to by a number of legal authors and presiding officers as “an amorphous and nebulous concept based on subjective value judgements”. In the South African employment environment where fairness and objectivity is everything, applying such a concept is in its nature dangerous and imbued with risk. Yet, the reality often is that an employee’s attitude, his way of doing things, his disruptiveness, pushiness, temper, impatience, lack of tact, meddling, manipulation, interpersonal relationships or just his general disagreeability, are causing upsets and are interfering with the smooth running of the business. Although he is making his targets and performing on par, other employees persistently complain about him, clients don’t want to work with him and whenever this is raised with him, he becomes defensive and alludes to victimisation (or discrimination of some sort). You don’t quite know what the problem is, but you just know he has to go.
Sounds familiar?
The employer’s rights in such a situation
In the absence of statutory guidance, the principle that the employer is entitled to require peace and harmonious working relationships in the organisation, has been confirmed by case law over the years. (Erasmus v BB Bread Ltd [1987] 8 ILJ 537 (IC)). It is an implied term of the employment contract that the employee must not act in a way which results in disharmony and a breakdown in the relationship (Council of Scientific & Industrial Research v Fijen [1996] 6 BLLR (AD)).
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.
When can it be said that an employee has become “incompatible”?
There must be some other evidence besides the say-so or opinion of the employer. The typical workplace includes a wide variety in personalities, approaches and managerial styles and the employer is required to tolerate mild eccentricity or idiosyncrasies.
- Incompatibility relates to “the subjective relationship of an employee and other co-workers within the employment environment, regarding the employee’s inability to maintain cordial and harmonious relationships with his peers”. (Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC)).
- Employees become incompatible when their colleagues, subordinates or superiors are unable to tolerate their behaviour.
- Where the employee’s eccentric behaviour is of such a gross nature that it causes consternation and disruption in the workplace, after he or she has been properly counselled or warned (Joslin v Olivetti Systems & Networks Africa (Pty) Ltd [1993] 14 ILJ 227 (IC)).
- An ‘inability on the part of the employee to work harmoniously with fellow workers or managers or the employee does not fit with the corporate culture’.
- Where an employee is not suited to his work because of his disposition or character and does not fit in with his work environment and relates poorly to his colleagues or clients and, as a result, creates an unhappy or hostile working environment.
- Caution must be exercised when the alleged incompatibility relates to an employee lodging a grievance, or who is the subject of a grievance; or who reacts to an intolerable work environment created by an employer, or to the unreasonable or unlawful demands of an employer.
- Incompatibility must reflect an irreconcilable breakdown in the working relationship caused by personality differences, resulting in the employee’s inability to work with others. (Wright v St Mary’s Hospital, 1992)
The legal context
The LRA does not make any specific reference to “incompatibility” as constituting a ground for dismissal. The three stated grounds are misconduct, incapacity and operational requirements. Case law have however established that incompatibility is a species of incapacity which affects the employee’s ability to work according to his contract. (Jabari v Telkom SA (Pty) Ltd (supra)).
It is important to distinguish between this scenario and one of misconduct. Misconduct requires the employer to take disciplinary action based on the fault (intention or negligence) of the employee in breaching valid workplace rules / standards. Incapacity (and thus incompatibility) involves a counselling process – no disciplinary warnings – as it is regarded as a ‘no fault’ situation based on the inability of the employee to act as required by the relevant workplace standards. Generally speaking, misconduct are more likely to pertain to a specific incident of unacceptable behaviour, whilst incompatibility relates more to continuous and underlying disharmonious conduct on the part of the employee.
Employers should also not be tempted to devise some other pretext for dismissing an employee with whom they are incompatible, rather than appropriately addressing the incompatibility. Neither should incompatibility be used to disguise another reason why the employer wants to get rid of an employee.
- In Nathan v Reclamation Group (Pty) Ltd [2002] 23 ILJ 588)a new operations director stripped the existing director of his powers, humiliated and downgraded him. The employee was later dismissed on charges of poor work performance. However, the CCMA found that the apparent poor performance of the dismissed director had been fabricated by the operations director and that the real reason for this dismissal was incompatibility between the two of them. The arbitrator therefore found the dismissal to have been unfair.
- In Cutts v Izinga Acess (Pty) Ltd [2004] 8 BLLR 755) the employee was retrenched, but the Labour Court found that the real reason for the dismissal was incompatibility between the employee and some fellow managers.
- In Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC), the employee initiated grievance and legal proceedings against management and rejected a voluntary severance package. He was dismissed for incompatibility, 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 could also encompass situations where the employer’s beliefs are at odds with an employee’s beliefs. Workplaces with a particular corporate culture may be uncomfortable for employees with different values and this could potentially create situations where the non-conformist employee comes to be regarded as ‘incompatible’ with the employer’s requirements. When the expectations of compatible behaviour amount to imposing the employer’s value system, it could infringe an employee’s right to freedom of conscience, belief or expression and expose the employer to a claim of automatically unfair dismissal. In Zabala v Gold Reef City Casino [2009] 1 BLLR 94 (LC) it has been held that disapproval of extra-marital affairs may qualify as a ‘belief’ and that dismissal of an employee for this reason would be automatically unfair. To prove incompatibility, it is not enough for the employer to show that the employee did not “fit in” – it must be shown that the employee was in some way responsible for the conflict of values.
When will a dismissal for incompatibility be fair?
Section 185 of the Labour Relations Act states that every employee has the right not to be unfairly dismissed and the employer is accordingly required to follow a fair procedure (procedural fairness) and the dismissal must be for a fair reason (substantive fairness).
Fairness excludes arbitrary decision making or unfair discrimination towards a difficult employee. The employer must first investigate and evaluate the situation and gather facts. If the employee is not the cause of the disharmony, the employer must deal with the true problem uncovered. Dismissal will only be accepted as a fair solution if the incompatibility has been caused by the employee and have resulted in an irremediable breakdown. Dismissal for incompatibility is an act of last resort and is not accepted as justified if the employee has not been counselled and given an opportunity to rectify the situation.
The courts have provided specific guidelines for practical implementation, for example in Jardine vs Tongaat Hulett Sugar Limited [2002] 23 ILJ 547 and Jabari v Telkom SA (Pty) Ltd (supra).
Procedural fairness
The employer must apply the rules of natural justice and is required to seek ways of reversing the incompatibility. When the conduct of an employee creates disharmony, the employer must evaluate the problem and attempt to assist the employee to overcome his or her personal difficulties. The employer must make some sensible, practical and genuine efforts to effect an improvement in interpersonal relations when dealing with an employee whose work is otherwise perfectly satisfactory (Lubke v Protective Packaging (Pty) Ltd (1994) 15 ILJ 422 (IC)).
- The offending employee has to be advised what conduct allegedly causes disharmony and who is upset by the conduct
- Discuss possible remedial actions to remove the cause of the disharmony and alert the employee to the possibility of termination of employment, should this not be possible
- Give the employee a fair opportunity to remedy the situation if he/she is the cause, and a reasonable period to do so – follow up and monitor (keep a paper trail)
- The employee must be allowed to make representations on measures to avoid dismissal
- Consider alternative positions
- Give the employee an opportunity to respond to the allegations before final decision to dismiss is made
- The employee may be assisted during the process by a co-worker.
Substantive fairness
The employer’s own strong feelings about incompatibility is entirely insufficient. Although incompatibility is a subjective concept, the courts and arbitrators want facts and hard evidence rather than feelings. The employer must be able to prove that there was a fair reason for dismissal on the basis of the employee’s incompatibility (incapacity).
- Proof that the intolerable conduct on the part of the employee was the primary cause of the disharmony / conflict in the workplace.
- Did the disharmony have a (potentially) adverse effect on the employer’s business?
- Was the disharmony or tension irremediable despite providing fair opportunity to do so?
- Was the termination of the employee’s contract the only reasonable way in which the cause of the disharmony could be removed?
- Was there an irretrievable breakdown in the employment relationship – it is required of the employer to show how, where, when and how the employee’s conduct led to a breakdown of the employment relationship.
Conclusion
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 and follow the guidelines provided by the courts in this regard.
For more information, please contact Judith at judith@griesselconsulting.co.za
