11 March 2022
Incompatibility, for the purposes of employment law, is defined in the matter of Jabari v Telkom SA (PTY) LTD (2006) 27 ILJ 1854 LC. It states that incompatibility relates to an “employee’s inability to maintain cordial and harmonious relations with their peers”. Incompatibility does not form part of poor work performance but instead is an ability by an employee to conform to workplace standards. It is also important to note that while incompatibility is defined as a type of incapacity, where the employee’s actions transgress from mere detachment and disharmony into misconduct for contravening the employer’s code of conduct, the employer may take the necessary disciplinary action for misconduct.
Is there a test for incompatibility? This lies with the employer’s discretion ultimately. The employer has to set reasonable standards pertaining to the harmonious interpersonal relationships in the workplace, and the corrective action that would take place when an employee continuously transgresses the standards set.
The test for substantive fairness is to what extent the tension or disharmony caused by the employee was disruptive to the operations of the employer and whether the employer took all reasonable measures to address the disharmony. The employer would have to allow the employee the opportunity to be counselled and advised as to what conduct causes the disharmony and which employees are upset by the behaviour of the employee as well as what remedial action has to be taken. The employee should be afforded an opportunity to meet the required standards.
The Courts have also determined that a reasonable time should be afforded to the employee to allow them to improve relations in the workplace, and that dismissal should only occur where the degree of incompatibility so impacted on the functions of the employer, that it can no longer be tolerated for the interest of efficient operations.
In a recently decided Bargaining Council case of Chemical, Energy, Paper, Printing, Wood and Allied Workers Union obo Mokoena v Sasol Chemical Operations (PTY) LTD (2022) 2 BALR 105 (NBCCI), the Bargaining Council was required to rule on the fairness of a dismissal for incapacity of an employee who was a warehouse controller at the employer.
The Applicant was dismissed for incompatibility for his excessive abuse of the employer’s grievance processes and continually displaying aggression towards an immediate superior. The Arbitrator noted that the employee again filed a grievance after a successful conciliation process. The parties agreed to “bury the hatchet” but the employee continued to pursue grievances that were unfounded, which caused serious disharmony to the operations of the Respondent.
The Arbitrator ruled that the employer went out of their way to assist the employee, who had continuously rejected advice and persistently raised issues that were previously addressed. The Arbitrator ruled that the Applicant had disrupted harmony in the workplace to such an extent that it warranted dismissal.
It becomes clear from the Bargaining Council matter that the employee, through their lodging of continuous grievances that were not backed by evidence, and that have already been resolved on previous occasions, had caused such a severe disruption to the harmony in the workplace that the Commissioner found that it justified a fair dismissal on the basis of incompatibility.
Although the concept of incompatibility appears to be vague, the recent case demonstrates that incompatibility can serve as a valid ground for a dismissal, under the classification of incapacity.
Invictus Group is able to assist employers with all their labour law challenges, no matter the complexity. Contact us on 0861 737 263, so our team of experts can provide you with best practice advice and assistance.
