Employees who cause this disharmony are often found to be ‘incompatible’ with the employer’s collaborative culture or working environment. Incompatibility generally stems from personality traits, personal differences or behavioural problems. These could cause unnecessary tension, conflict or unacceptable conduct by and between employees.

Should the incompatibility not be remedied, it could lead to the termination of the employment relationship, as incompatibility is often accompanied by a breakdown of the trust and working relationship between the parties.

A variety of different procedures have been applied when it comes to dealing with an incompatible employee, including misconduct, incapacity and retrenchment.

Case Study

In Wereley v Productivity SA & another (2020) 41 ILJ 997 (LC), the Labour Court dealt with an employer’s options in instances where incompatibility arose in the workplace and held that “it is misconduct for an employee to foster and aggravate a disharmonious working environment” and that such misconduct should be dealt with by way of a disciplinary inquiry. However, the Court then held that incompatibility could also be dealt with as an operational requirement matter, leading to retrenchment.

In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (2020) 41 ILJ 1360 (LAC) the Labour Appeal Court was also faced with the issue of incompatibility in the workplace and reached a different conclusion. In the above case, a conflictual relationship developed between two senior employees, which the company could not resolve.

The ongoing disharmony between these employees harmed the employer’s business and caused disruptions in the office. To resolve the situation, the employer decided to consolidate the two senior roles through a Section 189 restructuring exercise.

The two disgruntled employees were requested to apply for the new position, and one was ultimately retrenched. The retrenched employee was not happy with the approach adopted by the employer and alleged that the reason for the dismissal was unfair discrimination, alternatively unfair in Section 189 of the Labour Relations Act.

Labour Court Findings

The Labour Court found that the retrenched employee did not discharge the onus to prove that the reason for her dismissal was discriminatory and further held that the employer’s structural solution of combining the positions and declaring one of the posts redundant was the only solution and a rational commercial or operational decision.

On appeal, the Labour Appeal Court found that regardless of the differing opinions on how employers should deal with incompatibility, the prevailing view is that incompatibility is a species of incapacity that impacts work performance. When it comes to procedural fairness, an employer must inform the employee of the conduct allegedly causing the disharmony to identify the relationship affected by it and propose remedial action to remove the incompatibility.

The employee should be allowed to reply to the allegations and remove the cause for disharmony. The Labour Appeal Court held that the retrenched employee’s dismissal was procedurally unfair.

What s the law? What s the law?

From the case law dealing with incompatibility, the prevailing view is that incompatibility may be dealt with either as misconduct, where the employee’s conduct either contravenes their terms and conditions of employment or the employer’s policies and procedure, or incapacity, where the employee causes disharmony and is incapable of adjusting to the corporate culture.

Both approaches require an inquiry of some sort, and dismissal for reasons of incompatibility must be preceded by the employer awarding the employee with a reasonable opportunity to remove the cause of disharmony, regardless of the procedure ultimately applied.

The Labour Relations Act does not deal with incompatibility, so employers should exercise caution in solely relying on this reason for the termination of an employment relationship.

Should you need assistance or guidance in dealing with an employee fitting this profile, please contact our offices to ensure that the correct procedure is followed.

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