Sometimes we find ourselves dealing with difficult colleagues and in most cases these ‘difficulties’ are usually resolved relatively easily through talking it out, or more formally through a grievance processes. Yet, what happens when this same employee makes for a difficult working environment for everyone – one will have to question, what is the common denominator?
It is true, we do not have to get along all of the time, but we should at least conduct ourselves in a civil manner, opting for professionalism in the workplace.
What happens if the disharmony goes deeper, challenging the ethos of the working culture?
Understanding the Elements of Incompatibility
The concept of incompatibility is wider than, this person just does not fit in – there is an element of greater harm, whereby it can be shown that these continuous actions of disharmony place the company in potential financial or reputational jeopardy.
Labour Court judge, Mokgoatlheng AJ in the matter of Jabari vs Telkom SA (Pty) Ltd  10 BLLR 924 (LC), stated, “An employer has the prerogative to set reasonable standards pertaining to the harmonious interpersonal relationships in the workplace.”
The Jabari matter further references incompatibility as “the employee’s inability or failure to maintain cordial and harmonious relationships with his peers.”
This inability is considered a form of incapacity and considers the subjective interpersonal relationships within the workplace, from an objective point of view.
As with any dismissal, the courts have stressed the importance of both substance and procedure. If the above can be shown, from an objective point of view, then a dismissal on the grounds of incompatibility will be upheld. Meaning that all other possible avenues have been exhausted and a dismissal is the only other alternative.
Following the correct procedure
The correct procedure for an incompatibility dismissal as cited in the matter of Wright vs St. Mary’s Hospital (1992) 13 ILJ 987 (IC) at 1004H and mentioned in the Jabari matter at 937, explains that:
“The employee must be advised what conduct allegedly causes disharmony; who has been upset by the conduct; what remedial action is suggested to remove the incompatibility; that the employee be given a fair opportunity to consider the allegations and prepare his reply thereto; that he be given a proper opportunity of putting his version; and where it is found that he was responsible for the disharmony, he must be given a fair opportunity to remove the cause for disharmony.”
From the above it is clear that the employer bears the onus of proof, and that the employee must be given an opportunity to improve or rectify the behaviour (i.e. through counselling or progressive discipline).
In the Jabari matter, an employee was dismissed on the basis that his “attitude, behaviour and general personality” was incompatible with the employer’s corporate culture. The court, in this instance found that the dismissal was unfair, in that the employer had failed to follow due procedure, in that the employee was not afforded an opportunity to remedy the interpersonal relationships.
Prospects of Success
As can be seen from the above, that whilst the courts confirm that incompatibility exists as a valid ground for termination of employment, the likelihood of a successful dismissal on that basis, is rather slim.
However, in the CCMA matter of Miyeni vs Chillibush Communications (Pty) Ltd (2010) 19 CCMA 8.3.1, the Arbitrator confirmed that a higher degree of expectation rests on the shoulders of senior employees. In this matter a Managing Director was removed from his position by the Board of Trustees, because of his “incompatibility to fit the corporate culture” of the employer, Miyeni was afforded a reasonable opportunity to present his case, but failed to exercise that right, in that he failed to attend the meeting. The Arbitrator found that this constituted a reasonable ground for dismissal, finding that his dismissal was both substantively and procedurally fair.
Although the Miyeni matter was not tested outside of the CCMA, the courts have confirmed the principle of incompatibility as a valid ground for dismissal, provided that the correct procedure is followed, further re-iterating that senior employees will carry a greater expectation of ‘fitting into a company’s corporate climate,’ and creating an amicable working environment for all.
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