There may be various reasons and a variety of causes that result in an employee performing poorly. Regardless of the circumstances or cause, the effect is that the employee is unable to perform their duties satisfactorily or as required. Unsatisfactory work performance is measurable not only in terms of low or poor productivity; it can sometimes take more subtle forms. Two such general grounds are ‘unsuitability’ and ‘incompatibility’. Unsuitability refers to instances where employees are unsuited to their work because of their disposition or character. Incompatibility is when employees do not ‘fit in’ with the working environment and relate poorly to colleagues and clients.
These forms of dismissal are not well known, and the Labour Relations Act does not specifically deal with them. It is advised that when these circumstances arise, they are dealt with as forms of poor work performance as both relate to the issue of whether employees have the ability to do the work for which they were employed.
There are, however, cases in which employees become incompatible with their colleagues because of behaviour which amounts to misconduct. In SARU v Watson (2019) 40 ILJ 1052 (LAC) The respondent employee, employed by the appellant as the general manager in charge of referees and was charged with misconduct and dismissed following an arbitration held in terms of s 188A of the LRA 1995. On review, the Labour Court agreed that the employee was guilty of the charges in respect of which the CCMA commissioner had dismissed him and that his conduct had been grossly inappropriate, unprofessional and unbecoming. In addition, the court accepted that his management style had been vulgar, demeaning, and to some extent, abusive. The court held that dismissal was an appropriate sanction.
There may be circumstances where the employees’ incompatibility could result in an operational issue. In Zeda Car Leasing t/a Avis Fleet v Van Dyk (2020) 41 ILJ 1360 (LAC) the employer retrenched a manager after merging the posts of two managers who could not get along. The employer then invited each employee to apply for the single post and retrenched the unsuccessful candidate. While the court accepted the matter was a retrenchment, it seemed uncomfortable with the matter being dealt with as a retrenchment rather than a case of incapacity. The Labour Appeal Court held that in essence, this had been a case of incompatibility and that the preferred approach would be to deal with the matter as a “species of incapacity”. It further pointed out that the employer had approached the problem as one of incompatibility but did not complete that process. Van Dyk’s dismissal was ultimately ruled to be procedurally unfair.
Complaints of incompatibility are generally difficult to prove and as such employers should proceed with caution. In Larcombe v Natal Nylon Industries, Pietermaritzburg, the employee was dismissed after six months’ service on the ground of his alleged incompatibility with other members of the management team, which dismissal was found to be unfair. The former employee alleged incompatibility arose from an argument with another member of the management team, which led the managing director to the conclusion that one of them would ‘have to go’. The court held that this was not an adequate reason to dismiss the employee.
Our members are advised that when instituting disciplinary action against an employee, that they ensure the process is both substantively and procedurally fair. They are further advised that the sanction imposed is appropriate in the circumstances.
Article by: Gordon Flanagan
Dispute Resolution Official – East London