From a Labour Law perspective, incompatibility can be comparable to the proverb “the nail that sticks out gets hammered”. It is the employee’s inability to work reasonably and harmoniously with other employees or to fit in with an organisation’s work environment. Incompatibility, as defined in Jabari v Telkom SA (PTY) LTD (2006) 27 ILJ 1854 LC, is incapacity relating to an employee’s inability to maintain cordial and homogenous relations with their peers. Incompatibility further does not form part of poor work performance but an inability to conform with workplace standards.
While incompatibility is defined as a type of incapacity, where the employee’s action transgresses from mere dissociation and disharmony into misconduct for violating an employer’s code of conduct, the employer may also take necessary disciplinary action for the misconduct.
Test for incompatibility
The employer has the prerogative to set reasonable standards pertaining to the harmonious interpersonal relationships in the workplace and the remedial action that would take place when an employee transgresses the standards set. The test for substantive fairness is whether the disharmony and/or tension was serious and irredeemable and whether the employer took all sensible and reasonable measures to address the disharmony and allow the employee the opportunity to conform with the workplace standards.
The Courts have also determined that a reasonable time should be afforded to the employee to allow them to improve relations in the workplace and that dismissal should only occur where the degree of incompatibility so impacted on the functions of the employer that it can no longer be tolerated for the interest of efficient operations.
As with a dismissal for misconduct, the employer bears the onus of proof that the termination was fair. In Jabari v Telkom SA, the Court set out that dismissal for incapacity must be initiated by independent corroborative evidence. The Court goes on to state that the evidence of the employee is weighted more heavily than the employer’s evidence.
In Joslin v Olivetti Systems and Networks Africa (PTY) LTD (1993) 14 ILJ 227 (IC), the Court, in adopting the “golden rule” test, held that the mere eccentric behaviour of the employee could not itself give rise to a ground for dismissal. Dismissal may be appropriate only where the employee’s eccentric behaviour is of such a gross nature that it causes consternation and disruption in the workplace and only after the employee has been adequately counselled and warned.
In applying the provisions of items 8 and 9 of Schedule 8 of the Code of Good Practice, it was found that the employee should be counselled and advised as to what conduct causes disharmony and which employees are upset by the behaviour of the employee as well as what remedial action has to be taken. The employee should be afforded an opportunity to meet the required standards.
In a recently decided Bargaining Council case of Chemical, Energy, Paper, Printing, Wood and Allied Workers Union obo Mokoena v Sasol Chemical Operations (PTY) LTD (2022) 2 BALR 105 (NBCCI), the Bargaining Council was required to rule on the fairness of a dismissal for incapacity of an employee who was a warehouse controller at the employer. The Applicant was dismissed for incompatibility for his excessive abuse of the employer’s grievance processes and continually displaying aggression towards an immediate superior. The Arbitrator noted that the employee again filed a grievance after a successful conciliation process. The parties agreed to “bury the hatchet” and failed to refer any unfair labour practice dispute to the Bargaining Council. The Arbitrator ruled that the employer went out of their way to assist the Applicant, who had continuously rejected advice and persistently raised issues that were previously addressed. The Arbitrator ruled that the Applicant had disrupted harmony in the workplace, which warranted dismissal.
Article by: Wesley Lazarus
Dispute Resolution Official – George