Incompatibility between an employee and his or her colleagues can, and often does, result in fair dismissal, on grounds of either misconduct or incapacity. It is a set of circumstances in which an employee is responsible for an irretrievable breakdown in harmony which, as described in Edcon Limited v Kesha Mohammed-Padayachee & others (Labour Court, case number J331/16) “is of such a gross nature that it causes consternation and disruption in the workplace”.
In the Labour Court case of Sally-Anne Bentley v Survival Tyre Safety (Pty) Ltd (Case number JS799/16), it was noted that “A dismissal for incompatibility is more properly classified as a form of dismissal for incapacity if the employees concerned are not to blame for the conduct that renders them incompatible. On the other hand, if the employee concerned is to blame for his or her behaviour, termination of employment can be viewed as dismissal for misconduct”.
In this case, the employee had been accused of incompatibility on grounds of misconduct. None of the employer witnesses testified that they were unable to work with the employee; on the contrary, they testified that they were in fact able to do so. No employer witnesses were led who had allegedly complained about the employee’s behaviour. One of the employer witnesses testified that when asked by management to formulate written complaint about the employee, she was unwilling to do so. In fact, the employer witness continued that “the (employee) was the only female in a predominately male environment and that she had to fight harder to get what she wanted. The (employee’s) persistence made her one of the most successful sales representatives” at the company.
The judgment continued that “the employee’s conduct must be the cause of the disharmony or tension”. According to the employer, the employee was demanding and difficult to work with, and this coincided with a dispute about her commission structure, working hours and leave entitlement.
The employer also argued that the employee’s “alleged incompatibility stemmed from her inability to do her work.
The Court concluded that the employee’s dismissal on grounds of incompatibility was unfair, and that the evidence clearly points towards a unilateral change in the employee’s working conditions.
The Labour Court judgment in Watson v South African Rugby Union & others, was noted to have held that “the starting point is to treat any allegation of incompatibility as a case of incapacity. It is only once the measures put in place to address and reverse the incompatibility complained of have failed that it can be treated as misconduct. Thus, once those measures, accompanied by set norms and standards have failed to yield results and the employee continues with his or her errant ways, nothing prevents an employer from dealing with that employee’ stuffy subsequent behaviour as misconduct”.
In Edcon Limited v Kesha Mohammed-Padayachee & others (Labour Court, case number J331/16) the employer sought to review the dismissal of the employee on grounds of incapacity, which the CCMA had held had been substantively unfair, with the reinstatement of the employee with back-pay.
The employer contended that there had been several complaints from various staff members about the employee, around her work ethic her ability to work collaboratively within her team. An incapacity hearing was convened at which the employee was held to have been incompatible, and dismissed with pay in lieu of notice.
In the review, the employer, amongst other things, argued that the dismissal was not procedurally unfair, that the CCMA Commissioner had “misconceived the enquiry”, ignored the employer’s poor work performance policy, and “ignored evidence of four witnesses and concluded that two other witnesses were relevant to prove incompatibility”. The employer placed significant emphasis on its assertion that the Commissioner had also not given enough consideration to the employee’s poor work performance and insubordination.
The Court held that the employee was not in fact dismissed for poor work performance and insubordination, noting that “the reason why (the employee) was dismissed is that she was found to be incompatible”.
The judgment continued that “Incompatibility arises in a situation where there has been a breakdown in the harmony. The golden rule is that prior to reaching a decision to dismiss, an employer must make some sensible, practical and genuine efforts to affect an improvement in the inter-personal relations when dealing with a manager whose work is otherwise perfectly satisfactory. The offending employee has to be advised what conduct allegedly causes disharmony, who is upset by the conduct, and what remedial action is suggested to remove the cause of the disharmony”.
The employee must then be afforded reasonable time to make amends. The employee must be warned and counselled if there is no improvement, before a hearing is held.
In this case, the review application was dismissed with costs.