Conflict between employees in the workplace is an increasing trend, and employers are often at a loss of how to deal with it. Choosing the right process to address the situation is however extremely important, as the Labour Appeal Court has recently again emphasised.
An employee’s attitude, his/her way of doing things, disruptiveness, pushiness, temper, impatience, lack of tact, meddling, manipulation, interpersonal relationships or just general disagreeability, can cause upsets that interfere with the smooth running of an employer’s operations. Although such employees may be meeting targets and performing on par, if other employees persistently complain about them, clients don’t want to work with them and they become defensive whenever you raise this with them, you will have to address the issue one way or another.
Many employers or HR Managers would first try mediation – often contracting external experts – but if this does not have the required result, the employer needs to know what its rights and obligations are to resolve the situation.
Inaction is not an option
The employer is entitled to require peace and harmonious working relationships in its workplace, and also has an obligation to provide a safe working environment for all its employees.
When the continued employment of a particular employee causes disharmony in the workplace, the employer is entitled to address the problem and, if it does not improve, to remove the cause of the disharmony by dismissing the employee.
What is regarded as ‘incompatibility’ in terms of South African law?
Whilst the LRA does not make any specific reference to "incompatibility" as constituting a ground for dismissal, case law has however established that incompatibility is a species of incapacity which affects the employee’s ability to work according to his contract.
As stated just recently by the Labour Appeal Court, incompatibility involves the inability on the part of an employee to work in harmony within the corporate culture of the business or with fellow employees. It is a therefore regarded as a species of incapacity and where an employee cannot maintain an appropriate standard of relationship with peers, subordinates and superiors, as may be reasonably required by the employer, such inability may constitute a substantively fair reason for dismissal. (Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (JA53/18)  ZALAC 4 (11 February 2020))
(Mgijma v Member of the Executive Council, Gauteng Department of Education (2014) 25 SALLR 558 (LC))
Caution must however be exercised when the alleged incompatibility relates to an employee lodging a grievance, or who is the subject of a grievance; or who reacts to an intolerable work environment created by an employer, or to the unreasonable or unlawful demands of an employer.
It is also important to distinguish incompatibility (incapacity) from acts of misconduct on the part of the employee, which would require the employer to take disciplinary action based on the fault (intention or negligence) of the employee in breaching valid workplace rules / standards. Generally speaking, misconduct is more likely to pertain to a specific incident of unacceptable behaviour, whilst incompatibility relates more to continuous and underlying disharmonious conduct on the part of the employee.
How must the employer approach the situation?
Fairness requirements exclude arbitrary decision-making or unfair discrimination towards a difficult employee. The employer must first investigate and evaluate the situation and gather facts. If the employee is not the cause of the disharmony, the employer must deal with the true problem uncovered.
Employers should also not be tempted to devise some other pretext (such as retrenchment) for dismissing an employee with whom they are incompatible, rather than appropriately addressing the incompatibility. Neither should incompatibility be used to disguise another reason why the employer wants to get rid of an employee.
In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Susan Margaret Van Dyk (JA53/18)  ZALAC 4, the employer started a mediation process to resolve conflict between two senior managers, but when this was unresolved, decided to turn it into a restructuring (retrenchment) exercise in order to dismiss one of the two – instead of continuing dealing with the incompatibility issue by way of an Incapacity process. The employer however failed to comply with the stringent procedural requirements of a s189 consultation process, which rendered the dismissal on the basis of operational requirements procedurally unfair.
Requirements for fair incompatibility dismissal
Incapacity (and thus incompatibility) involves a counselling process – no disciplinary warnings – as it is regarded as a ‘no fault’ situation based on the inability of the employee to act as required by the relevant workplace standards.
Dismissal will only be accepted as a fair solution if the incompatibility has been caused by the employee and have resulted in an irremediable breakdown. Dismissal for incompatibility is an act of last resort and is not accepted as justified if the employee has not been counselled and given an opportunity to rectify the situation.
The employer must apply the rules of natural justice and is required to seek ways of reversing the incompatibility. When the conduct of an employee creates disharmony, the employer must evaluate the problem and attempt to assist the employee to overcome his/her personal difficulties. The employer must make some sensible, practical and genuine efforts to effect an improvement in interpersonal relations when dealing with an employee whose work is otherwise perfectly satisfactory, and provide the employee with a fair opportunity to remedy the situation within a reasonable period. Dismissal should be a last resort and only after the employee had the chance to make representations.
The employer must be able to prove that there was, objectively, a fair reason for dismissal on the basis of the employee’s incompatibility (incapacity). Factors to consider:
Incompatibility is a valid ground for dismissal in South African labour law - however employers should act cautiously when relying on this ground to dismiss employees and follow the guidelines provided by the courts in this regard.
© Judith Griessel