A better understanding of Incompatibility

A better understanding of Incompatibility
December 10, 2018 Chante Hobbs

Incompatibility is a term that is rare, vague and uncertain in our law as it is not mentioned as a possible ground or reason for dismissal in terms of Section 188 of Labour Relations Act 66 of 1995 (LRA). According to Christianson (2002: 163), incompatibility has been defined as the inability on the part of the employee to work in harmony within the corporate culture of the business or with fellow employees (1994: 285-6). Grogan (2003: 277) similarly defines incompatibility as follows:

“Incompatibility arises when employees are unable to work in harmony with their colleagues or unable to adapt to the corporate culture of their companies. The rationale for the dismissal of employees who are unable to work in harmony with their colleagues, superiors or subordinates or to adapt to the corporate culture of their employers is the right of the employer to expect their employees to adapt to the employers norms and standards and to conduct themselves in a manner acceptable to other employees.

In an article authored by Elaine Milton: Incompatibility, it is stated that according to Grogan, although incompatibility may be regarded as somewhat of a vague and indeterminate concept, employees can be seen as being incompatible when their colleagues, subordinates or superiors are unable to tolerate their behaviour, i.e. that there is a breakdown in interpersonal relationships or an irreconcilable breakdown in the working relationship caused by personality differences, resulting in an employee’s inability to work with others.

According to Elaine (supra), although issues are sometimes somewhat blurred in terms of incompatibility matters, what is clear is that an employer is entitled to address problems being caused by an employee who causes disharmony in the workplace and where the problems cannot be resolved, to remove the cause of the disharmony. However, fair procedures have to be followed and in all cases, substantive fairness is crucial. The following aspects are to be taken into consideration when an employer contemplates taking action against an employee for incompatibility:

  1. Whether the employee’s actions and conduct caused disharmony in the workplace,
  2. Whether the disharmony and tension were a direct result of the employee’s behaviour,
  3. Whether the disharmony had escalated to a point where there was no possibility of remedial action having any effect, and
  4. Whether there were any appropriate steps, short of dismissal, which could be taken against the employee in order to remedy the tension or disharmony.

In SA Quilt Manufacturers v Radebe (1994) 15 ILJ 115 (LAC) the court stressed that dismissal in response to a threat by a third party was not necessarily fair and posited the following criteria for such cases:

  1. The demand for the employee’s dismissal must have a good and sufficient foundation;
  2. The third party’s demand must be backed by real and serious threat;
  3. The employer must take reasonable steps to dissuade the party making the demand from persisting with it;
  4. The employer must investigate and consider all alternatives to dismissal in consultation with the employee and the employee must be made aware that the refusal to accept an alternative will lead to his dismissal

ABOUT THE AUTHOR

Sekhobe Abe Mopedi is a SEESA Labour Senior Legal Advisor at our Bloemfontein office. He obtained his LLB degree from the University of Freestate in 2007 and has been with SEESA for 10 years.

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