During the last few years, there has been an increased focus on interpersonal relationships in the workplace. Ever so often, employers may be confronted with a situation where one employee may not be compatible with the workplace dynamic and in extreme cases may disrupt workplace harmony. The questions many employers are confronted with are:
– What is expected of them in such a situation?
– May such an employee merely be disciplined and dismissed?
– Is a pre-dismissal procedure required?
In terms of the Labour Relations Act, there are three grounds upon which a dismissal may be based – misconduct, operational requirements and incapacity.
“An employer has the prerogative to set reasonable standards pertaining to the harmonious interpersonal relationships in the workplace” – words by Mokgoatlheng AJ in the case of Jabari v Telkom SA (Pty) Ltd (“Jabari“). This case has recognised a lesser-known ground for dismissal – incompatibility. Although not expressly defined in the labour relations act, this concept has become alive through the judgements of the courts, adding colour and life to the concept.
In Jabari, workplace incompatibility has been defined as a form of incapacity where the relationship between an employee and his or her co-workers cannot be maintained in a cordial and courteous manner as a result of the employee’s inability to fit into the workplace culture. It is, therefore, a situation of “it’s not me, it’s you. Dismissals based on incapacity are known as a no-fault dismissal, the courts have recognised that in most cases, the causing of disharmony in the workplace, no fault can be attributed to the employee.
In Miyeni v Chillibush Communications, incompatibility has succeeded as a ground justifying dismissal. Even though in many cases employers have failed to succeed in proving the fairness of such dismissal from a substantive and procedural perspective, the overwhelming message communicated by the court is that as with any other dismissal based on incapacity the basic requirements of fairness needs to be adhered to. Most importantly, the employee has the right to make representations in accordance with the audi alteram partem principle. The correct procedure for an incompatibility dismissal has been set out in case law.
In the case of Wright v St. Mary’s Hospital, the Industrial Court, as it was at the time, 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.”
In this case, the employer fell short of the court’s views regarding her dismissal, and it was established that a dismissal for incompatibility would only be justifiable if the employee’s conduct resulted in an irretrievable breakdown in relationships.
An incapacity dismissal as a result of incompatibility cannot merely be based on an employer’s view that the employee is unable to fit into the corporate culture of the workplace. Employers should therefore be warned that this is still a grey area, a subjective concept in many cases and courts and arbitrators only rely on cold hard facts rather than feelings and views. This was the view followed in Jardine v Hulett Sugar, where the CCMA confirmed the view that there must be concrete evidence to support the employer’s view of incompatibility. Should this view not be followed, this will open doors for employers to unfairly terminate the employment relationship based on a dislike of the affected employee.
It has become apparent in many cases that employers, at times, use other grounds to cover the true reason for dismissal – which is incompatibility. In Nathan v Reclamation Group (Pty) Ltd (2002, 23 ILJ 588) a new senior manager humiliated and downgraded his superior when he joined the group. He was later dismissed for poor work performance. However, the CCMA had established during the arbitration that the alleged poor work performance was merely sugar-coating the true reasons for terminating the relationship. The applicant’s incompatibility with his peers had been the cause of the deterioration of workplace relationships. The dismissal was found to be unfair.
Poor work performance and misconduct are easily identifiable as grounds for termination of the employment contract, and incompatibility may be a more nebulous and controversial concept. Therefore, where incompatibility imposes problems in the workplace, an employer should accept that certain obligations are imposed upon them.
In Cutts v. Izinga Acess Pty Ltd, the labour court codified these obligations.
Employers should not turn a blind eye where the problem persists and should:
– Investigate objectively and gather the facts, never fabricate such in order to rid themselves of an employee that exhibits behavioural issues. A clear line should be drawn between cases where the employee bullies his colleagues (as this would be clear misconduct) or where he simply does not fit in due to no fault on his behalf.
– Keep an open mind, if the incompatibility is not the true problem, uncover the real problem and deal with these issues accordingly
– Make a clear and genuine effort to reverse the incompatibility if there is any. As with all incapacity cases, all interactions should be properly documented, and the employee should be given a reasonable opportunity to improve or modify their behaviour.
Lastly, dismissal should be considered a last resort only. Does the incompatibility have a detrimental effect on operations or relationships in the workplace? If not, an employer should think twice before embarking on incapacity proceedings and explore alternatives instead. Perhaps an employee would be better suited in a position where he does not need to interact with clients or fellow employees? Certainly, alternatives should be explored.
Article by: Janeske Greeff
Dispute Resolution Official – Cape Town