Employees who are seen as trouble makers, eccentrics, disruptive, disagreeable, pushy, non-compliant, independent or who merely refuse to ‘suck up’ to the boss often find themselves on the wrong side of the exit door. 

In the absence of statutory guidance, case after case has confirmed the old principle that the employer is entitled to require harmonious working relationships in the organisation. This principle was developed in the 1987 case of Erasmus vs BB Bread Ltd (8, ILJ 537). This laid the basis for employers to act against employees whose conduct is incompatible with workplace harmony. In view of this it appears, at first sight, somewhat surprising that so many employers have come off second best after dismissing employees for incompatibility.

One of the earliest employers to fall foul of the Court’s views on this subject was St Mary’s Hospital (Wright vs St Mary’s Hospital, 1992, 13 ILJ 987). In that case the employee was dismissed for incompatibility after undermining authority, incitement and losing his temper. However, the Court held that dismissal for incompatibility would only be fair if the employee’s conduct resulted in an irretrievable breakdown in the relevant relationships. The employer is required to endeavour to seek ways of reversing the incompatibility. If the employee is believed to be the cause of the problem he/she has the right to be given a chance to resolve it.

As the Court was not satisfied that these principles had been met it ordered the employer to reinstate the employee. As I mentioned in a recent article such a reinstatement strengthens the hand of an undesirable employee and makes further action against him/her extremely difficult.

It is folly for employers to use some other pretext in order to get rid of employees with whom they are incompatible. In Nathan vs The Reclamation Group (Pty) Ltd (2002, 23 ILJ 588) a new Operations Director, on joining the company, stripped Nathan, the existing director, of his powers, humiliated him and downgraded him. The employee was later dismissed on charges of poor work performance. However, the CCMA found that the apparent poor performance of the dismissed director had been fabricated by the Operations Director and that the real reason for this dismissal was incompatibility between the two of them. The arbitrator therefore found the dismissal to have been unfair.

Another case in point is Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] 6 BLLR 549 (LAC). After the respondent employee, a general manager, fell out with another senior manager the employer took steps to remedy the conflict by merging the posts of the two employees. After the respondent’s attorney objected to the process, the employer retrenched the applicant employee. 

The Court noted that fairness in such cases requires the employer to inform the employee of the conduct that causes the disharmony, to identify the relationship affected, to propose remedial action and to give the employee a reasonable opportunity to remedy the situation. The appellant had in fact initially approached the problem as an incompatibility issue by attempting to mediate. However management then restructured the division and declare one post redundant. Having taken this step, the appellant was obliged to engage in joint consensus-seeking consultation, which it had not done. The dismissal was accordingly unfair. The employer was ordered to pay the employee R932 321 in compensation and to pay her legal costs.

In the case of Glass vs Liberty Group Ltd (2007, 12 BALR 1172) a senior employee was dismissed for incapacity. The CCMA found that the employee had disrupted the harmony of the workplace and that this justified her dismissal as the employee had been counselled but had refused to co-operate with remedial measures.

The above decisions teach employers that, should they believe incompatibility to be a problem in the organisation they need to:

  • Investigate objectively and gather the facts.
  • Avoid ignoring the incompatibility problem and fabricating some other pretext for dismissal
  • Keep an open mind. If the investigation shows that incompatibility is not the problem or that it is not the fault of the employee being investigated the employer must deal with the true problem uncovered.
  • Make a clear and genuine effort to reverse the incompatibility. 

 

Where dismissal becomes a real option first:

  • gather true facts to prove that the incompatibility is the employee’s fault, prove that genuine and concerted efforts to rectify the problem have failed and prove that the incompatibility has irretrievably damaged the working relationship
  • use the best labour law expertise available to make sure that the employer has followed all the necessary steps correctly and that dismissal is truly the right option.

To attend our 24 November 2020 webinar on RETRENCHMENT AND THE COVID ENVIRONMENT please contact Ronni via ronni@labourlawadvice.co.za or on 0845217492.

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