Incompatibility – What is it, and what does it mean?
The issue of incompatibility in the workplace refers to situations where an employee’s approach, attitude, lack of diplomacy, manipulative behaviour, or general inability to foster positive relationships disrupts the working environment. Even if these employees meet their work objectives, their behaviour or conduct may still lead to frequent complaints from colleagues or customers, and provoke defensive behaviour when concerns are raised. Employers have a responsibility to promote a healthy and non-toxic workplace, as well as the authority to preserve harmonious working relationships.
Frequently, employers first attempt to resolve these issues through consultation and mediation, often bringing in external experts. If these interventions fail, employers must then rely on established legal principles to clarify their rights and responsibilities.
Incompatibility under South African labour law
In recent changes to Schedule 8 (Code of Good Practice: Dismissal), within the Labour Relations Act, “incompatibility” was specifically included as a form of incapacity, as a valid reason for dismissal. South African legal precedent has recognised incompatibility as a type of incapacity for some time; however, using it was complicated and risky. Incompatibility is described as “an employee’s inability to work cooperatively within the employer’s organisational culture or with colleagues.”
The Labour Appeal Court, in the case of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (JA53/18) [2020] ZALAC 4, confirmed that incompatibility can be a legitimate and fair ground for dismissal if an employee is unable to maintain the relationships necessary for the workplace to function. In another case (Mgijma v MEC, Gauteng Department of Education (2014) 25 SALLR 558) was certain factors were highlighted that may indicate incompatibility, such as:
- Interpersonal conflict,
- Management style differences,
- Cultural clashes,
- a Lack of trust, and
- an Inability to adapt to the organisational environment.
In earlier cases, it was made clear that incompatibility involves a fundamental breakdown in workplace relationships, often due to personality differences. It is important to be cautious, however, when incompatibility is alleged as a reaction to employees who are voicing complaints, resisting unreasonable instructions, or responding to a hostile workplace.
Incompatibility is not a form of Misconduct.
It is essential to differentiate between incompatibility (which falls under incapacity) and misconduct. Misconduct refers to instances where an employee intentionally or negligently violates workplace rules or standards. Incompatibility, on the other hand, is about ongoing discord, usually resulting from personality clashes rather than intentional misbehaviour. For this reason, employers should not handle incompatibility as a disciplinary matter, but instead use counselling and strategies aimed at resolution and improvement.
Procedural and Substantive fairness
Conflict between employees in the workplace is always present, and nothing new. Selecting the appropriate process to address the situation is of critical importance, as both the stability of workplace relationships and the employer’s legal obligations are at stake. While instances of misconduct, poor work performance and retrenchments are relatively straightforward to categorise within the framework of South African labour law, conflict arising from interpersonal disharmony presents a more complex challenge.
As with any type of Dismissal, there are 2 types of fairness that need to be met, which are Procedural and Substantive Fairness. The first type of fairness is procedural, and case law indicated that certain principles (other than the normal) need to be adhered to:
- Investigate the cause of unhappiness.
- Inform the employee of the behaviour or conduct causing the conflict and who the other party is.
- Implement remedial changes to resolve the issues and disharmony.
- Allow the employee the opportunity to respond and time to correct the situation.
All previous cases indicated that employees must be given counselling first, and of course, a fair opportunity to remove or change the cause of unhappiness or disharmony. Any other dismissal (misconduct, performance or retrenchments) used is procedurally unfair, and such temptations must be avoided at all costs.
Substantive fairness requires the company to substantiate objectively that the incompatibility justifies dismissal. This includes:
- The employee’s behaviour or conduct was the cause of workplace disharmony.
- This had a negative impact, or potential impact, on operations and workplace culture.
- The behaviour or conduct was irreversible despite remedial efforts.
- The trust relationship is broken beyond repair
- Dismissal was the only reasonable outcome, and there were no other reasonable alternatives to dismissal.
Final thoughts:
Employers must maintain consonant working environments and may, as a last resort, dismiss employees whose conduct irreparably disrupts workplace relationships.
Incompatibility, although now recognised, remains a challenging reason to implore, as it requires fine footwork to not be caught wanting at the CCMA, or Labour Court, and accordingly, Employers should properly consult their labour advisors before venturing down this process.
For assistance regarding potential incompatibility matters or any other HR and IR-related questions, please do not hesitate to consult SA Labour Help for guidance through this minefield.
Off The Desk of
Gerhard Kotze’
Managing Member