---

Incompatibility may be defined as an employee’s inability or failure to maintain cordial and harmonious relations with their fellow employees and clients within the workplace. The prerogative to set reasonable standards pertaining to harmonious interpersonal relationships in the workplace lies with the employer.

Even though section 188(1)(a) of the Labour Relations Act 66 of 1966 does not make specific reference to incompatibility as a ground for dismissal, this ground has over the years found application with approval in the South African labour laws.

Although incompatibility may be applied as a form of misconduct and/or operational reason, this piece focuses on incompatibility as a form of incapacity. The Courts have, over the years, laid down guidelines on how to deal with an employee being incompatible in the workplace and may be summarised as follows:

• The employer must bring to the attention of the employee, the fact that the behaviour or conduct causes disharmony in the workplace;
• The employer must inform the employee how their conduct causes disharmony in the workplace and which specific fellow employees are upset or affected by the behaviour or conduct complained of;
• The employer must afford the employee an opportunity to improve the relations in the workplace;
• The employee must also be afforded counselling (where possible and necessary) and must be warned of the consequences of continuing with the conduct complained thereof;
• In the event the employee is unable to mend her ways and improve the relations with fellow employees, the employer may hold an inquiry into the incompatibility of the employee;
• The employee must be given notice to attend the inquiry (48 hours’ notice has been held to be sufficient);
• The notice to attend the inquiry must provide the employee with sufficient information relating to the disharmony complained of, the employees affected, the period within which the said behaviour or conduct took place and steps taken by the employer to correct the behaviour;
• The employee must be given an opportunity to challenge and adduce the evidence during the inquiry;
• In the event it is found that the employee was advised of her conduct causing disharmony in the workplace and that the employee failed to take reasonable steps to mend relations in the workplace, the employee may be dismissed on the basis of incompatibility.

The test for incompatibility:

The test for substantive fairness of incompatibility dismissals is twofold. The first leg of the inquiry is “to what extent does the tension or disharmony caused by the employee disturb the business operation of the employer. The second leg of the inquiry is whether the employer took reasonable measures to address the tension or disharmony.

It is common cause that if it is found that the tension or disharmony caused by the employee’s behaviour or conduct affects the employer’s operations negatively and is somehow grave and that the employer has taken reasonable steps to correct the behaviour of the employee without success, the employer may be justified to dismiss the employee.

Brief Case study: Chemical, Energy, Paper, Printing, Wood and Allied Workers Union obo Mokoena v Sasol Chemical Operations (PTY) ltd (2022) 2 BALR 105 (NBCCI).

In this case, the Bargaining Council was tasked with deciding the fairness of the dismissal of an employee who excessively abused the employer’s grievance processes and continually displayed aggression towards his immediate supervisor. In arriving at his decision, the commissioner noted that the employee lodged a grievance for the same issues after a successful conciliation. It was also noted that the employer continuously went out of its way to assist the employee who continuously rejected the advice and persistently raised issues which were previously addressed. The Arbitrator correctly ruled that the applicant had disrupted harmony in the workplace, which warranted a dismissal.

In conclusion, it is clear that although incompatibility is not recognised as a separate ground for dismissal in terms of our law, it has found a way to infiltrate the contemporary SouthAfrican labour laws. Notably, the procedure followed in dealing with incompatibility is distinct from all other grounds of dismissal (that is despite its application being linked to the recognised grounds of dismissal currently). Incompatibility as a ground of dismissal has recently received attention from numerous authors who called upon the legislature to consider including incompatibility as the fourth ground of dismissal in terms of the Labour Relations Act. I am also a proponent of the inclusion of incompatibility as a ground to bring about certainty in its application in the contemporary labour laws.

By: Karabelo Mmelesi

Disclaimer: This information is published as general information and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation.

Back