BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Go to: www.labourlawadvice.co.za
The lodging of complaints by staff can be used as grounds neither for alleging incompatibility nor for dismissing employees.
In the case of Jabari vs Telkom SA (Pty) Ltd (2006, 10 BLLR 924) the Labour Court, in explaining the nature of workplace incompatibility, highlighted three important characteristics of incompatibility. It said that:
- Incompatibility refers to the employee’s “inability or failure to maintain cordial and harmonious relationships with his peers”
- Incompatibility is a form of “incapacity”
- Incompatibility is an “amorphous, nebulous concept, based on subjective value judgments”.
It is necessary to look more closely at each of these three important characteristics of workplace incompatibility:
- Incompatibility Refers To The Employee’s “Inability Or Failure To Maintain Cordial And Harmonious Relationships With His Peers”
It is important to note that this description of incompatibility as fairly narrow. It refers to the failure or inability to work harmoniously with “colleagues” rather than with the rules of the employer or with the instructions of the employee’s superiors. While both poor relationships with colleagues and refusal to obey instructions can affect work efficiency they are not the same thing.
While the legal meaning of incompatibility can be stretched to include an employee’s inability to fit in with corporate culture it cannot be stretched to include the straightforward breaking of the employer’s rules. Such failure is a form of misconduct rather than incompatibility.
- Incompatibility Is A Form Of Incapacity
As stated, incompatibility itself is not misconduct. It is rather a form of incapacity in the sense that the incompatibility negatively affects work performance. The incompatibility renders the employee unable to do his/her work properly or hinders the work performance of the team.
- Incompatibility Is An Amorphous, Nebulous Concept, Based On Subjective Value Judgements.
That is, whether the employee is truly the cause of the disharmony or whether there really is disharmony is difficult to judge. If the manager dislikes the employee he/she may erroneously allow this dislike to persuade him/her that the employee is at fault and is incompatible whereas the employee may in fact only be exercising his/her legal rights.
In the Jabari case mentioned earlier in this article the employee lodged a grievance and also lodged a dispute with the CCMA for unfair promotional practice. The employee was then fired for incompatibility and lodged a case of automatically unfair dismissal. The Labour Court decided that:
- The employer had neither established that the employee had been at fault nor that there had been any incompatibility
- The employee had not been given a chance to confront the allegations
- The employee had neither been given counseling nor a chance to remedy the alleged incompatibility
- The employee had been dismissed for having challenged the employer’s earlier promotion decision
- This amounted to victimization and an automatically unfair dismissal
- The employer had to reinstate the employee with full retrospective effect.
It is very difficult to place an employee’s behaviour in the incompatibility box for the reasons explained earlier. In addition, even when the employer decides to go the incompatibility route, it still has the onus of proving that:
- There really was incompatibility
- It was the employee’s fault
- It resulted in serious consequences for the employer
- The employer had tried to implement remedial measures
- The employee was given the chance to defend his case and to correct his/her behaviour
In the light of the numerous and dangerous pitfalls and of the extreme complexity of such cases employers are advised to:
- Act with extreme caution when dealing with such employees
- Obtain advice from a reputable labour law expert. Very often, such advice illumines a very much simpler, less dangerous and more effective route to follow in solving the problem.
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