INCOMPATIBILITY: What can an employer do about conflicting personalities?

The Labour Appeal Court said the operational requirements process was unfair. This was because incompatibility is a species of incapacity which impacts on work performance – it’s not an operational issue.

The court said it may be a substantively fair reason for dismissal if an employee can’t keep an appropriate standard of relationship with peers, subordinates and superiors.

However, procedural fairness in incompatibility cases requires the employer to –

• Inform the employee of the conduct causing the disharmony;
• Identify the relationship affected by it;
• Propose remedial action to remove the incompatibility;
• Give the employee a reasonable opportunity to –
  • Consider the allegations and proposed action;
• Reply to the allegations; and
• Remove the cause for disharmony.

Then to determine whether –

• The employee is responsible for or has contributed substantially to causing the disharmony; and
• The disharmony has damaged the relationship of trust and confidence to such an extent that it can no longer be repaired.

TIP: The tricky part of dealing with conflicting personalities is often trying to decide who is the most responsible for causing the disharmony. This is a judgement call which should be assessed as far as possible on objective facts instead of subjective opinions. The next step would then be to follow the LAC’s guidelines for conducting a fair incapacity enquiry process.

PATRICK DEALE

labour lawyer & commercial mediator

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Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (2020) 29 LAC 1.11.26 also reported at [2020] 6 BLLR 549 (LAC)

Source: Worklaw Annual Review 2020

Edited by Sarah Christie