By Ivan Israelstam, chief executive of Labour Law Management Consulting
Employers frequently wish to get rid of undesirable employees because they are seen as trouble makers, eccentrics or merely refuse to ‘suck up’ to the boss. Such employees are often labelled as ‘incompatible’ and are fired. Often there is good reason for employer’s drastic action, but just as often, there is not.
Case after case has confirmed the old principle that the employer is entitled to require harmonious working relationships in the organisation. In St Mary’s Hospital (Wright vs St Mary’s Hospital, 1992, 13 ILJ 987) 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.
The employer’s own strong feeling about incompatibility is entirely insufficient. This is a key reason for employers to think twice before using incompatibility as the basis for a dismissal. In other words, while incompatibility has a strong subjective element the courts want facts and hard evidence rather than feelings.
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. 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.
And in Cutts vs Izinga Acess (Pty) Ltd (2004, 8 BLLR 755) the employee was retrenched. However, the Labour Court found that the real reason for the dismissal was incompatibility between the employee and some fellow managers. The employer was therefore required to compensate the employee to the tune of six months’ remuneration.
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.
• Fix the incompatibility problem rather than fabricating a 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 if there is any.
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.