Incompatibility — new decision

An employer can insist on reasonable peace and harmony in the workplace; if personal animosities disrupt the work, every employer will, at some stage, consider taking steps against the employee or the employees concerned. For any number of reasons personal and professional working relationships can break down: the trust between managers and/or employees may be disrupted, there may be differences of opinion or even mere dislike can mutate into aggression that turns the workplace into something resembling a personal war zone.

There is no doubt that incompatibility is a valid ground for dismissing an employee. There was a time when it was uncertain whether incompatibility fell within the ambit of incapacity or the employer’s operational requirements. This debate was settled some time ago, and incompatibility is now seen as being a form of incapacity. The essence of incompatibility lies in the fact that the employee concerned cannot maintain sound working relationships with his or her colleagues.

Of course, when dealing with incompatibility, there is always an element of subjectivity: when can it really be said that the working relationships have broken down to the extent that dismissal is justified? Is it the case that only one employee is incompatible, or is it, instead, that issues have arisen amongst a number of employees; difficult and conflictual situations involving more than one employee? In the latter case, the problem may not lie with only one employee, and the situation then becomes a lot more complicated — the employer may have to investigate and consider just where the problem lies.

The Labour Court has handed down a new decision on the issue of incompatibility: Jabari v Telkom SA (Pty) Ltd (2006) 15 LC 6.11.1. This decision illustrates some of the difficulties an employer may face when it comes to an incompatibility issue. After a hearing, the chairperson concluded that the employment relationship had broken down because the employee was incompatible with the “corporate culture” (this is, of course, a vague concept in itself). The employee claimed that his dismissal was automatically unfair because the reason for the dismissal was that he had lodged grievances against management and that he had refused a voluntary severance package.

The main factual issue the Labour Court was called upon to decide was whether the employment relationship had irretrievably broken down as a result of the employee’s conduct and behaviour. This is the main onus resting on the employer in the case of incompatibility: it will be required of the employer to show how, where, when and how the employee’s conduct led to a breakdown of the employment relationship. For this reason, the Labour Court considers the evidence before it in some detail. Evidence was given that the employee concerned challenged and questioned decisions, did not follow instructions, that he is arrogant, insubordinate and unco-operative and that he habitually institutes grievances (without seeing these through). As regards the grievances lodged, the chairperson of the enquiry told the Court that the employee often initiated groundless grievance proceedings but that these grievances were unjustifiable and not work-related.

After dealing with the evidence presented, the Labour Court concluded that the employee had not been given an opportunity to confront the alleged disharmonious conduct he is accused of and he had not been given any counselling. He had not been given an opportunity to remedy the perceived incompatibility. This meant, the Court held, that the employer had failed to show reasonable grounds for concluding that the employee was incompatible or that the employment relationship had broken down. The real reasons for the employee’s dismissal related to the fact that he initiated grievance proceedings against the employer’s managers and that he refused a voluntary severance package.

Now one would expect the Labour Court to find the dismissal unfair. But it goes much further: it finds that the dismissal was automatically unfair — in terms of section 187(1)(c) and 187(1)(d) of the Labour Relations Act. And this is the debatable point in this decision: can it really be said that the employee’s dismissal was automatically unfair? A second point for debate, perhaps, is whether the employee’s dismissal was substantively unfair. Procedurally, there may be some arguments to be made out in favour of the employee, but the question remains whether the employer had a valid and fair reason to dismiss the employee.