It can happen in any organisation:  one person just doesn’t seem to fit in.  It can, for example, happen where a manager and employee have a falling out over a matter and are unable to reconcile, which results in their continued relationship becoming intolerable and causing disharmony in the workplace.  In short, an employee’s way of doing things, attitude, temper, level of tact, interpersonal relationships or general level of agreeability, are all factors that could possibly cause an interference with the smooth running of an employer’s operations. Although such employees may be meeting targets and performing on par, if other employees persistently complain about them and the lack of harmony influences employees’ ability to work together, an employer will have to address the issue one way or another.

Employers are entitled to require a harmonious work environment.  Furthermore, they have an obligation to provide a safe working environment for all employees.  Therefore, should the continued employment of a particular employee cause disharmony in the workplace to a point where other employees’ work performance is impacted negatively, the employer is entitled to address the problem and, if it does not improve, to remove the cause of the disharmony by dismissing the employee.

South African labour legislation only warrants three grounds for the fair dismissal of an employee, namely misconduct, incapacity and dismissal on the basis of operational requirements.  Misconduct is quite self-explanatory – it means that a rule or standard regulating conduct in the workplace was contravened.  The distinguishing element between incapacity and operational requirements lies in the question of whether the situation resolves around a person / personality (which amounts to incapacity), or whether it can be ascribed to changes in the company / environment (operational requirements).

The scenario at the beginning of this article is a typical example of incompatible personalities.  Where does this fit into the above three types of dismissal?  Incompatibility in labour law terms is defined as a situation where employees are unable to work harmoniously with their colleagues, or are unable to adapt to the “corporate culture” of the workplace.  Although it has previously been categorised under the umbrella term of “operational requirements” (which typically may result in retrenchment), recent case law and academic opinions do not accommodate this view anymore. The Labour Appeal Court in the matter of Zelda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk determined that where incompatibility results in the employee being unable to work with others, or adapt to the employer’s culture, the reason for dismissal should be incapacity as opposed to operational requirements.

It is, however, important to note that incompatibility does not always qualify as a form of incapacity.  In certain cases where the employee is to blame for his/her behaviour and the employee clearly contravenes a work rule, it will be classified as a form of misconduct.  The normal route of progressive discipline should be applied in such cases.  On the other hand, if the concerned employee is not to blame for his/her situation, it should be handled as incapacity.

So, once an employer has established that they are dealing with incapacity, what should they do?  Here are some simple guidelines:

• Inform the employee of their conduct causing the disharmony.
• Identify the relationship(s) affected by it.
• Propose remedial action to remove the incompatibility.
• Give the employee a reasonable opportunity to consider the allegations / proposed action and reply to the allegations.
• Give the employee a proper opportunity to state their version.
• If it is found that the employee in question was responsible for the disharmony, they must be given a fair opportunity to remove / correct the cause for disharmony.
• If the situation does not improve, the employer is entitled to remove the cause of the discord by dismissing the employee (with notice).

It is important to remember that any employee has the right to refer their dismissal to the CCMA if they feel that they have been treated unfairly.  It is therefore crucial that employers ask themselves the following questions to test the substantive fairness of their decision to dismiss an employee for incompatibility:

• Does the employee’s conduct cause disharmony or tension in the workplace?
• Is the disharmony and/or tension the result of the employee’s behaviour (other than misconduct)?
• Is the disharmony and/or tension irremediable?
• Does the disharmony and/or tension have an adverse or potentially adverse effect on the employer’s business?
• Is the termination of the employee’s contract the only reasonable way in which the cause of the disharmony and/or tension can be removed?

Incapacity can seldom arise from an isolated incident, unless the employee’s conduct on that single occasion was so grossly unacceptable that it may have permanently destroyed the working relationship.  Employers should therefore never use incapacity as an easy way to get rid of an “unwanted” employee.  The best way to solve any problem has always been to discuss it honestly and openly, and this is exactly what employers should endeavour to do in difficult situations of conflicting personalities.

For assistance with any labour relations processes, contact Joubert & Associates at 021 – 863 0966 or info@hrsa.co.za