It is not uncommon for employers to be faced with employees who for many reasons, cannot co-exist with their colleagues in the same workplace, or who are otherwise ‘incompatible’ with the employer’s existing workplace culture.
Incompatibility is not a new concept, but employers and labour lawyers have sought to steer clear of it. It is generally accepted that incompatibility is a form of incapacity. Van Niekerk and Smit in their work Law@Work assert that incompatibility is “probably best dealt with as a form of incapacity since it generally assumes a form of inability to work within the particular circumstances in which the employee is engaged”. They however also acknowledge that incompatibility could take other forms such as a retrenchment in instances where a business suffers serious economic consequences as a result of an employee’s incompatibility.
The Labour Court in Wereley v Productivity SA & another (2020) 41 ILJ 997 (LC) also found that incompatibility could manifest from misconduct, which should be dealt with by way of disciplinary proceedings. It held that “incompatibility might conceivably be dealt with as an operational requirements matter [i.e. retrenchment], which could lead to the employer following a path of retrenchment’’.
In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (2020) 41 ILJ 1360 (LAC), two managers from different divisions found it difficult to co-exist in the workplace, as a consequence of which a conflictual environment developed, which in turn affected their productivity. The employer intervened and initially approached the conflict as one relating to incompatibility. When those interventions did not succeed, the employer decided to consolidating the positions held by the two managers into one.
The two managers were informed of this structural change and encouraged to apply for the new position, with the other position being declared redundant. One of the employees did not apply and was retrenched. In considering the process followed by the employer, the Labour Appeal Court (“the LAC”) held, inter alia, that:
“[39] Incompatibility involves the inability on the part of an employee to work in harmony either within the corporate culture of the business or with fellow employees. [2] There has been some difference of opinion in the past about whether incompatibility is an operational requirements or an incapacity issue. The prevailing view is that incompatibility is a species of incapacity because it impacts on work performance. If an employee is unable to maintain an appropriate standard of relationship with his or her peers, subordinates and superiors, as reasonably required by the employer, such failure or inability may constitute a substantively fair reason for dismissal. Procedural fairness in incompatibility cases requires the employer to inform the employee of the conduct allegedly causing the disharmony, to identify the relationship affected by it and to propose remedial action to remove the incompatibility. The employee should be given a reasonable opportunity to consider the allegations and proposed action, to reply thereto and if appropriate to remove the cause for disharmony. The employer must then establish whether the employee is responsible for or has contributed substantially to irresolvable disharmony to the extent that the relationship of trust and confidence can no longer be maintained.”
The LAC was critical of the employer’s approach to the problem confronting it. While it had started out to deal with the issue as one of incompatibility, it changed to a restructuring exercise where one position would be declared redundant. At this point the employer was required to engage in a meaningful joint consensus-seeking process to avoid a dismissal. Instead:
“[43] The attitude of Avis that “invariably” one position would be declared redundant suggests that it may have prematurely closed its mind to meaningful engagement about measures to avoid dismissal. It saw dismissal of one of the managers as inevitable, despite the fact that there was no evidence of a reduction in workload or functions, any work performance problems (beyond incompatibility) or a need for financial cut backs in the division. No possibility of restructuring to change lines of accountability or the like appears to have been seriously mooted or considered. Dismissal was thus seen as the only and inevitable option and the manner in which Geldenhuys sought to get Van Dyk to commit telephonically to a severance package on 22 September 2015 and 23 September 2015 while she was ill at home, intimates that he saw her as the likely candidate for dismissal before any consultation process was embarked upon.”
The LAC found the employee’s dismissal to have been procedurally unfair and awarded her seven months’ compensation, equivalent to R932 321.73.
Dealing with incompatible employees can be a minefield and a holistic assessment should be made to determine the nature, extent and cause of the incompatibility. Once that has been done, an employer could approach the problem in various ways, ensuring that procedures are correctly followed. Using retrenchment to deal with an incompatible employee is likely to be a risky proposition and should be carefully considered.
A slip-up on procedure could result in a hefty claim for compensation, and employers should therefore take expert legal advice before embarking on any specific course of action.
