Dismissing any employee is difficult in the current climate of labour protection in South Africa. Our labour laws have certainly been instrumental in protecting vulnerable employees, but in the event that an employer seeks to dismiss a problematic employee, how would they go about it doing so whilst still ensuring that the rights of the employee are respected and the labours laws upheld?
Our law holds that there are three basic reasons for dismissing an employee. In addition to following strict dismissal procedure, the reason for dismissal must fall into one of the below categories in order to be seen as being fair and reasonable;
- Misconduct,
- Incapacity, or
- Operational Requirements.
It is often the case that the interview goes well and the work the employee subsequently produces is of a good standard, however, the employee does not integrate with other employees or company culture. Simply put, “the vibe is off”. But is this a sound reason to legally dismiss someone, how would an employer categorise this reason for dismissal in terms of the categories as listed above?
In the case Jabari v Telkom SA (Pty) Ltd (JS799/04) [2006] ZALC 63; [2006] 10 BLLR 924 (LC) (“Jabari case”), the employer alleged that the employee’s dismissal came as a consequence of an enquiry towards the employee’s incompatibility. In support thereof, the employer stated that the employee inter alia, caused frustration with his colleagues, sent threatening emails, created animosity in the workplace, and, ultimately, caused a breakdown in the trust relationship between the parties.
The court found that “incompatibility” falls within the category of incapacity. Incompatibility is based on subjective value judgements as it relates to the subjective relationship between the employer and employee and their colleagues, and can loosely be defined, in this context, as the inability to maintain harmonious relationships in the workplace.
The court highlighted that an employer is permitted to established reasonable standards for cordial relationships in the workplace, and in times of disharmony, is required to adhere to the following procedure when investigating same;
Advise the employee –
- What conduct allegedly causes disharmony;
- Who has been upset by the conduct;
- What remedial action is suggested to remove the incompatibility;
Further allow the employee –
- Fair opportunity to consider the allegations and prepare a reply thereto;
- Opportunity to state their version of events;
In order to prove incompatibility, an employer will need independent corroborative evidence to show that the disharmony was caused by the employee and consequently the employee was “unable to fit within the respondent’s “corporate culture” despite attempts by colleagues and the [employer] to accommodate the [employee] and to remedy the situation…”
Following the above investigations, if it is found that the employee was indeed the cause of disharmony, the employee must be afforded fair opportunity to remove the cause for disharmony before further legal action is taken against them. In the event that further action is instituted against the employee, the employer will further have to prove that the incompatibility constitutes a fair reason for the employee’s dismissal.
Further to the above, incompatibility as a ground for dismissal may have a more significant bearing on an employee who works on a higher level who may be instrumental in creating and maintaining company culture.
The current trend of creating workspaces that cater for building relationships and fostering “company culture” lends itself to the prevalence of raising incompatibility as a reason for dismissal. One should however note that in order to dismiss an employee for incompatibility, “disharmonious acts” of the employee need to be persistent and of a serious nature. There are very few instances where employees have been effectively dismissed based on incompatibility. Such a ground for dismissal is faced with numerous substantial and procedural challenges, both of which must be adequately satisfied in order to be successful.
Written By: Megan Manley
DKVG Attorney | Claremont
Contact: +27 21 683 3553