Although incompatibility is not specifically addressed in Schedule 8 of the LRA, Case Law indicates that incompatibility should be treated as a species of incapacity and is regarded as a valid ground for dismissal.
Employers frequently wish to get rid of undesirable employees who do not fit into the culture of the workplace or is unable to work with fellow employees or even their employers. In essence, the employee cannot maintain sound relationships with his colleagues. Usually these employees are seen as trouble-makers, disagreeable, pushy, non-compliant, disruptive, abrasive, difficult, disrespectful, unfriendly and un-co-operative, independent or merely refuses to “suck up” to the boss.
Often there is good reason for drastic action from the employer but not always.
The employer’s own feeling about the incompatibility is insufficient and therefor a key reason to think twice before dismissing on this basis. It is largely a subjective concept but arbitrators and courts want facts as evidence rather than feelings. Hearsay and gossip is unacceptable. In some cases the Labour Court found that the employer was subjective and that the employer did not act open-minded. The employer’s case should not be built on his personal inclinations towards the employee.
In Cutts v. Izinga Acess Pty Ltd, the Labour Court indicated that the employer should do the following:
• Investigate objectively and gather the facts.
• Avoid ignoring the problem or to fabricate facts.
• Keep an open mind, if the incompatibility is not the true problem, uncover the real problem.
• Make a clear and genuine effort to reverse the incompatibility if there is any.
Where dismissal is a real option, the employer must prove that the “fault” is on the side of the employee and that genuine efforts were made to rectify the problem. The employer must prove that the incompatibility has irretrievably damaged the working relationship. Also make sure that the correct procedures are followed regarding the incapacity hearing.
Prior to dismissal the employer must prove that he counselled the employee and that he was afforded the employee an opportunity to state his case before the decision to dismiss.
Further to incompatibility there are two other types of incapacity besides ill health and poor work performance. They are Unsuitability and General Incapacity which will be discussed in the near future.
Article by: Jacques du Toit
CEO Dispute Resolution Official – Bethlehem