Labour law – Incompatibility
Is not a reason within itself
Employers frequently wish to get rid of undesirable employees because they are seen as trouble-makers, eccentrics, disruptive, disagreeable, pushy or merely non-compliant. Such employees are often labeled as “incompatible” and are fired. Often there is good reason for the employer’s drastic action, but just as often, there is not.
In the absence of statutory guidance, case after case has confirmed the old principle that the employer is entitled to demand harmonious working relationships in the organisation and therefore may act against employees whose conduct is incompatible with workplace harmony. In view of this, it appears somewhat surprising that so many employers have come off second best after dismissing employees for incompatibility?
The courts clearly firstly require that employers seek ways of reversing the incompatibility. If the employee is believed to be the cause of the problem, they have the right to be given a chance to resolve it. If the courts are not satisfied that these principles had been met, then they can order the employer to reinstate the employee. Such a reinstatement strengthens the hand of an undesirable employee and makes further action extremely difficult.
The employer’s own strong feeling about incompatibility is entirely insufficient. This is a key reason for employers to think twice before using incompatibility as the basis for a dismissal. In other words, incompatibility is largely a subjective concept, whereas courts and arbitrators want facts and hard evidence rather than feelings.
It is not advisable for employers to use some other pretext in order to get rid of employees with whom they are incompatible. In Nathan v Reclamation Group (Pty) Ltd (2002, 23 ILJ 588) a new operations director, on joining the company, stripped Nathan, the existing director, of his powers, humiliated and downgraded him.
The employee was later dismissed on charges of poor work performance. However, the CCMA found that the apparent poor performance of the dismissed director had been fabricated by the operations director and that the real reason for this dismissal was incompatibility between the two of them. The employer was therefore required to compensate the employee to the tune of six months’ remuneration.
The above decisions teach employers that, should they believe incompatibility to be a problem in the organisation, they need to:
- Investigate objectively and gather the facts.
- Avoid ignoring the incompatibility problem and fabricating some other pretext for dismissal.
- Keep an open mind. If the investigation shows that incompatibility is not the problem or that it is not the fault of the employee being investigated, the employer must deal with the true problem uncovered.
- Make a clear and genuine effort to reverse the incompatibility if there is any.
- First gather true facts to prove that the incompatibility is the employee’s fault, prove that genuine and concerted efforts to rectify the problem have failed and prove that the incompatibility has irretrievably damaged the working relationship.
- Use an outside specialist to conduct the investigation objectively and to try and resolve the matter
Is not a reason within itself
Labour compass no. 9