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Dismissal for Incompatibility

Dismissal for Incompatibility

In working environments, interpersonal relationships are becoming more important in forming teams. Employees often have to be compatible with the culture of the employer and maintain harmonious relationships. But what happens if an employee is not compatible?

The Labour Relations Act, 66 of 1995 (“the Act”) recognises various grounds for dismissal, mainly misconduct, incapacity, and operational requirements. The concept of incompatibility as a ground for dismissal, is one that has been developed through case law.

In the case of Jabari v Telkom SA (Pty) Ltd1, the court defined incompatibility as ‘a species of incapacity and relates to the subjective relationship on an employee and other co-workers, within the employment environment, regarding the employee’s inability of failure to maintain cordial and harmonious relationships with his peers’.

The case of Wright v St Marys Hospital2 laid out the appropriate procedure in establishing whether an employee is incompatible as follows:

• The employee must be advised what conduct allegedly causes disharmony;
• Who has been upset by the conduct;
• What remedial action is suggested to remove the incompatibility;
• That the employee is given a fair opportunity to consider the allegations and prepare his reply thereto;
• That he be given a proper opportunity of putting his version; and
• Where it is found that he was responsible for the disharmony, he must be given a fair opportunity to remove he cause for disharmony.

An employer must not only prove incompatibility, but also show that the employee is substantially responsible for the disharmony, and that the proven incompatibility constitutes a fair reason for the dismissal3. In addition, an employer must prove that they followed the correct procedure set out above with regards to counselling the employee and affording him/her with an opportunity to put his/her version to the employer and to correct the disharmony with the aim of restoring an amicable relationship4.

It is important for an employer to understand the correct procedure when dealing with a dismissal on the grounds of incompatibility. In Jabari5, the court held that the employer failed to discharge the onus proving the correct procedure was followed. Incompatibility may succeed as a ground for dismissal if substantive and procedural fairness is followed.

Contact us at SchoemanLaw today if you need to address any employee concerns in your business, or you just want to streamline your existing employment processes to eliminate potential issues.  

Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC).
2 1992 13 ILJ (IC) at 1004H
Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC) at 938[8].
4 Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC) at 938[9] (b).
5 Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC).

© Sixolile Timothy - Schoemanlaw Inc. 2018

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Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC).