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Can incompatibility lead to dismissal?

It is often asked if an employer can dismiss an employee on the basis of incompatibility. Incompatibility can be described as an inability by an employee to work in harmony with his or her colleagues, as is reasonably required by the employer.

• By Minette de Jager, candidate attorney at Gerrie Ebersöhn Attorneys Inc.

In the past, both CCMA Commissioners as well as the Labour Court have noted that incompatibility is somewhat of a vague concept that does not fall under the three grounds for dismissal (misconduct, operational requirements and incapacity) but rather arises out of the subjective relationship between the employee and others in the organisation.

Recently, however, the Labour Appeal Court had to deal with incompatibility in the SA Rugby Union case. In this matter the employee, a general manager in charge of referees, was accused of having an autocratic management style, made demeaning, insulting and vulgar remarks towards his colleagues and their mothers, constantly swore, threatened his colleagues and generally conducted himself in an abusive and unprofessional manner.

The CCMA commissioner found that he was guilty of conduct that was grossly inappropriate, unprofessional and unbecoming. The commissioner took note of the employer’s disciplinary code and concluded that given the seriousness of the employee’s conduct and lack of remorse, this was not a case where progressive disciple should be applied.

The commissioner considered whether or not the employee’s conduct may constitute possible incompatibility and held that on the basis that the trust and confidence between the parties had broken down and given that the conduct of which the employee had been found guilty was of such a serious nature, the dismissal of the employee was substantively fair (i.e. for a fair reason).

The Labour Appeal Court concluded that whether or not the CCMA commissioner had accurately applied the law of incompatibility was not crucial to the ultimate conclusion of whether the employee’s dismissal was fair and held that given the findings that the employee’s behaviour was of a serious nature and utterly unacceptable to both his employer and colleagues, any reasonable decision-maker would have concluded that dismissal was an appropriate sanction.

The following principles can be extracted from various decisions made by the Labour Court and the Labour Appeal Court pertaining to incompatibility cases:

• A meeting must be held during which the employer informs the employee about the conduct that raises a question over the employee’s possible incompatibility with either the other employees or the culture within the organisation.
• The employee must be given an opportunity to respond to these allegations.
• The employer must consider the employee’s response and, if necessary, suggest ways to defuse the disharmony.
• The employee should be given a reasonable period to improve and to apply the employer’s suggestions.
• The employer should observe the employee’s behaviour. If no improvement is witnessed, a second meeting should be called wherein the employee’s conduct is discussed once again and any new allegations are raised, and formal suggestions are made; and
• If after such a meeting, there is still no improvement, a hearing should be held wherein the employer indicates that he sees no other option than to dismiss the employee in order to restore the workplace harmony.

In the end, the employer must follow a fair procedure and the employer must have a fair reason for the dismissal of an employee.