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INCOMPATIBILITY: What can an employer do about conflicting personalities?

Labour Law in a Nutshell: November 2020

Avis was faced with serious incompatibility problems between two managers. They decided to use an operational requirements process to resolve them. They combined the positions of the two incompatible managers. Each was invited by way of internal advertisement to apply for it.

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

ONLINE LEGAL SERVICES:

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CELL: 083 375 8771

EMAIL: patrick@deale.co.za

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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


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