Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
In the case of Jabari vs Telkom SA (Pty) Ltd (2006, 10 BLLR 924) the Labour Court highlighted three characteristics of incompatibility:
- Incompatibility refers to the employee’s ‘inability or failure to maintain cordial and harmonious relationships with his peers’.
- Incompatibility is a form of ‘incapacity’.
- Incompatibility is an ‘amorphous, nebulous concept, based on subjective value judgments’.
Let us look at these characteristics:
- Incompatibility refers to the employee’s ‘Inability or failure to maintain cordial and harmonious relationships with his peers’.
This refers to the inability to work harmoniously with ‘colleagues’ rather than with the rules or instructions of the employer. While both poor relationships with colleagues and refusal to obey instructions can affect work efficiency they are not the same thing. Failure to obey instructions/rules is a form of misconduct rather than incompatibility.
- Incompatibility is a form of ‘Incapacity’.
Conversely, true incompatibility is not misconduct. It is rather a form of incapacity in the sense that the incompatibility negatively affects cooperation and the work performance of the team.
- Incompatibility is an ‘Amorphous, nebulous concept, based on subjective value judgements’.
That is, whether the employee is truly the cause of the disharmony or whether there really is incompatibility is often difficult to establish objectively.
In the Jabari case mentioned above the employee lodged a grievance and also lodged a dispute with the CCMA for unfair promotional practice. The employee was then fired for incompatibility and lodged a case of automatically unfair dismissal.
The Labour Court decided that:
- The employer had neither established that the employee had been at fault nor that there had been any incompatibility;
- The employee had not been given a chance to confront the allegations;
- The employee had been dismissed for having challenged the employer’s earlier promotion decision;
- This amounted to victimization and an automatically unfair dismissal;
- The employer had to reinstate the employee with full retrospective effect.
This shows that when an employer decides to go the incompatibility route, it still has the onus of proving that:
- There really was incompatibility;
- It was the employee’s fault;
- It resulted in serious consequences for the employer;
- The employer had tried to implement remedial measures;
- The employee was given the chance to defend his case.
In light of the pitfalls and the complexity of such cases employers are advised to:
- Act with extreme caution when dealing with such employees.
- Obtain advice from a reputable labour law expert. Very often, such advice illuminates a very much simpler, less dangerous and more effective route for solving the problem.