An employer often finds himself in a predicament when one of his employees does not fit in with the working environment.
This is particularly so when the reason for the employee's incompatibility is because the employee does not get along with other employees in the working environment.
Incompatibility is considered in law to be a form of incapacity and relates essentially to the relationship of an employee with co-employees, and specifically to an employee's inability or failure to maintain cordial and balanced relationships with his co-employees.
An employer has a prerogative to set reasonable standards focusing on harmonious interpersonal relationships in the working environment.
There is no doubt that incompatibility as described above can give rise to serious problems for an employer, including disturbance and even irreconcilable conflict in the workplace, which could result in reduced productivity of employees.
The incompatibility of an employee with his working environment can be grounds for dismissal.
But employers should treat dismissal on the ground of incompatibility with caution. There are no guidelines contained in the Labour Relations Act 66 of 1995 for dismissal on the ground of incompatibility.
In addition, incompatibility is generally hard to prove.
For example, in the matter of Joslin v Olivetti Systems & Networks Africa (1993) 14 ILJ 227 (IC), the industrial court - the old employment tribunal - held that the dismissal of a managerial employee on grounds of his odd or eccentric behaviour was unfair.
The managerial employee's so-called "incompatible" behaviour included actions such as carrying a camera around his neck, cramming as many as 36 pens in to his pocket at the same time, promoting a "yes" vote in a national referendum and wearing a Springbok cricket cap to work.
The industrial court said that mild or harmless eccentricity, or unconventional behaviour, should be distinguished from extreme forms of unacceptable behaviour.
Dismissal may only be appropriate where an employee's behaviour is so bad that it causes disruption in the working environment, and then only after the employee has been properly counseled or warned.
The appropriate procedure that an employer should use to determine whether an employee is incompatible is described in the matter of Wright v St Mary's Hospital (1992) 13 ILJ 987 (IC) as follows:
The employee must be advised what conduct allegedly causes disharmony; who has been upset by the conduct; what action is suggested to remedy and remove the incompatibility; that the employee be given a fair opportunity to consider the allegations and prepare their reply thereto; that they be given a proper opportunity of putting their version; and where it is found that they were responsible for the disharmony, they must be given a fair opportunity to remove the cause for disharmony.
Should a dismissal on the grounds of incompatibility be referred to the CCMA or even to the labour court, it is the employer's responsibility not only to prove incompatibility, but also to show that the employee is substantially responsible for the disharmony and that the proven incompatibility constitutes a fair reason for the employee's dismissal.
l Lavery Modise is a director at Routledge Modise Moss Morris
l Assisted by Sian Wilkins, candidate attorney at Routledge Modise Moss Morris