Danny Hodgson
Consultant at Klopper Attorneys Inc.
danny@klopper.co.za
Introduction
Businesses are dependent on their employees to work harmoniously with one another to achieve the business’s goals. There is therefore an expectation on employees to act professionally and respectfully with one another to ensure that collegial relationships are maintained at the workplace. Naturally there are instances where employees disagree and personalities clash which can usually be resolved by HR professionals or through effective management. However in certain cases, there are employees who constantly create disharmony in the workplace due to their personality or behaviour which their colleagues are unable to tolerate. This has a negative impact on the work environment and can affect employee morale. In these situations, the company may be entitled to dismiss the employee due to incompatibility provided that a fair procedure is followed.
Substantive fairness
Section 188 of the Labour Relations Act (LRA) recognises three grounds for dismissal which are: misconduct, incapacity and operational requirements. There has therefore been some confusion from employers as to whether incompatibility is a valid ground for dismissal as it is not specifically provided for in the LRA. The Labour Courts and Bargaining Councils have however recognised incompatibility to be a form of incapacity, and therefore a valid ground for dismissal. This is due to the fact that it is regarded as the employee’s inability to conform to the standards set by the employer in maintaining a cordial and harmonious relationship at the workplace which results in their dismissal. To dismiss an employee due to incompatibility, the employer must be able to prove that it is the employee’s personality or behaviour that is responsible for causing disharmony in the workplace.
Procedural fairness
The Labour Appeal Court in the case of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk discussed the preferred approach when dealing with incompatibility. The Court held that procedural fairness in incompatibility cases requires the employer to inform the employee of the conduct or behaviour which is causing the disharmony, identify the relationship affected by such conduct and to propose remedial action to remove the incompatibility. The employee should then be given an opportunity to consider and respond to the proposed course of action and afforded a reasonable period within which to conform to the employer’s standards. Fairness therefore dictates that the employee may only be dismissed should they fail to improve or adhere to the company’s standards and only as a last resort. Once the employer has established that the employee is responsible for or has contributed substantially to irresolvable disharmony to the extent that the relationship of trust and confidence can no longer be maintained, and they have failed to improve after having been given the opportunity to do so, they may dismiss the employee.
Conclusion
An employee that fails to maintain an appropriate relationship with their peers and superiors may therefore be dismissed due to incompatibility. This ground can only be relied on in very limited circumstances where it is the behaviour of the employee that is causing disharmony in the workplace. A fair incapacity procedure should be followed to provide the employee with an opportunity to improve to ensure that dismissal is only used as a last resort.
