Incompatibility is usually dealt with as a form of incapacity.
In the case of Jardine v Tongaat-Hulett Sugar Limited (D849/02) [2003] ZALC 33 incompatibility has been defined as the “inability on the part of an employee to work in harmony either within the corporate culture of business or with fellow employees”.
The essence of incompatibility is an irremediable breakdown in the working relationship caused through personality differences, an inability to work together in harmony, friction between employees, a discordance in approaches and so on.
In order for there to be a fair reason for a dismissal based on incompatibility, a valid situation of incompatibility must exist. In order to establish whether such a situation exists, an employer must:
· Investigate the circumstances giving rise to the incompatibility;
· Advise the employee what conduct causes the disharmony;
· Clarify who has been upset by his/her conduct;
· Suggest remedial action to remove the incompatibility;
· Warn the employee that unless the situation improves he/she may well be dismissed; and
· Allow the employee an opportunity to consider the allegations and improve the situation.
Fair procedure requires that an employee who is alleged to be incompatible is given an opportunity to state his/her case and make representations on what measures can be taken to avoid dismissal. In practice, the substantive and procedural requirements will be closely connected, as the employer’s investigation into the matter will be of necessity and involve a “hearing” or discussion.
August 19, 2024
