Such incompatibility, if not remedied, could necessitate the termination of the employment relationship. This is particularly so as incompatibility is often accompanied by a breakdown of the trust and working relationship between the parties. Employers who have found themselves in this unfortunate situation have applied a variety of different procedures to rid themselves of incompatible employees including misconduct, incapacity and retrenchment . But which approach is correct?

In Wereley v Productivity SA & another (2020) 41 ILJ 997 (LC) the Labour Court dealt with an employer’s options in instances where incompatibility arises in the workplace and held that “it is obviously misconduct for an employee to foster and aggravate a disharmonious working environment” and that such misconduct should be dealt with by way of a disciplinary enquiry. The Labour Court then inadvertently muddied the water by stating that incompatibility could also be dealt with as an “operational requirements matter” leading to a retrenchment.

In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (2020) 41 ILJ 1360 (LAC) the Labour Appeal Court also dealt with the issue of incompatibility in the workplace and reached a much different conclusion. In this case a conflictual relationship developed between two senior employees, Van Dyk and Friebe, which could not be resolved. The ongoing disharmony between Van Dyk and Friebe had a negative impact on the employer’s business and caused disruptions in the office. In order to resolve the situation, the employer decided to consolidate the two senior roles by way of a section 189 restructuring exercise. The two disgruntled employees were requested to apply for the new position and Van Dyk was ultimately retrenched. Van Dyk took umbrage at the approach adopted by the employer and alleged that the reason for the dismissal was unfair discrimination, alternatively unfair in terms of section 189 of the Labour Relations Act (“the LRA”).

The Labour Court found that Van Dyk did not discharge the onus to prove that the reason for her dismissal was discriminatory and further that the employer’s “structural solution of combining the positions and declaring one of the posts redundant was the only solution and a rational commercial or operational decision”.

On appeal, the Labour Appeal Court found that despite the differing opinions on how employers should deal with incompatibility in the workplace, the prevailing view is that incompatibility is a species of incapacity because it impacts on work performance. Insofar as procedural fairness is concerned, an employer is required to “inform the employee of the conduct allegedly causing the disharmony, to identify the relationship affected by it and propose remedial action to remove the incompatibility”. Critically the employee should be given an opportunity to reply to the allegations and remove the cause for disharmony. The Labour Appeal court held that Van Dyk’s dismissal was procedurally unfair and that her retrenchment was a fait accompli.

From the plethora of case law dealing with incompatibility it appears that the prevailing view is that incompatibility may be dealt with either as misconduct (such as where the employee’s conduct either contravenes the employer’s policies and procedure or his terms and conditions of employment) or incapacity (where the employee is incapable of adjusting to the corporate culture and causes disharmony). Both approaches necessitate an enquiry of some sort. A dismissal for reasons of incompatibility, however, must be preceded by an employer providing the employee with a reasonable opportunity to remove the cause of disharmony, irrespective of the framework that is ultimately applied.

Insofar as reference has been made to utilizing the retrenchment procedure, as contained in section 189 of the LRA, when dealing with a case of incompatibility, we have deep concerns regarding the correctness of this approach. In FNB v CCMA and Others (2017) 38 ILJ 2545 (LC) the Labour Court was tasked with differentiating between a dismissal for operational requirements and incapacity. In this case the Labour Court, correctly in our view, held that “…in the event of incapacity, the focus is on the qualities of the employee. In the event of operational requirements, the focus is on the employer and its decisions relating to its business”. It thus stands to reason that incompatibility relates mainly to the qualities of the incompatible employee and not the employer and its decisions relating to its business.

The LRA unfortunately does not deal with incompatibility and as such employers should exercise caution in solely relying on this reason for the termination of an employment relationship. A variety of factors must be taken into account and evaluated in order to determine the best approach to follow. In particular, the employer’s possible contribution to the incompatibility must not be overlooked and conduct which may be perceived as unfairly discriminatory must be avoided.