Can you fire someone for being a square peg in a round hole?
The challenge
South African employment law currently only recognises four reasons for dismissal: misconduct, incapacity for poor performance, incapacity for ill health/injury, and the employer’s operational requirements. Accordingly, when faced with an employee who is good at his/her job but who is a poor fit with the organisation’s corporate culture, employers are sometimes left feeling like they are standing on legal quicksand.
In practice, incompatibility, which refers to an employee’s inability to work in harmony with their colleagues or to adapt to the corporate culture of their employer, is often viewed as the 5th ground for dismissal. However, the Labour Relations Act, 1995 does not specifically recognise incompatibility as a valid reason for dismissal.
So how do you exit someone from the business on the basis that they are "difficult" or "different"?
A business consultancy firm employed a lead consultant who was technically proficient, highly-qualified and hard working. However, from a personality point of view, the consultant was morose, introverted and prone to emotional outbursts. Given that he was required to work in a team and interact with clients, his behaviour was problematic as it threatened the harmony of the team and placed a strain on the company’s relationship with its client.
The solution
A review of the case law shows that the courts have in the past recognised an employer’s right to dismiss an employee for incompatibility, where the employer located the incompatibility within the broader context of either incapacity, misconduct or its operational requirements, and thereafter followed the appropriate pre-dismissal procedure.
More recently, the case law reflects that the courts are most comfortable when incompatibility is treated as a form of incapacity. This means that a prudent employer should advise the employee of in what way his/her behaviour is unacceptable in the work environment and provide him/her with an opportunity, and the necessary support, to improve.
The courts have held that dismissal for incompatibility would only be fair if the employee's conduct caused an irretrievable breakdown in relationships. Dismissal is regarded as a measure of last resort, and, prior to reaching a decision to dismiss, an employer must make some "sensible, practical and genuine efforts to effect an improvement in interpersonal relations when dealing with a manager whose work is otherwise perfectly satisfactory."
The Company initially counselled the employee about his behavior and referred him to an employee sensitivity programme. However, half way through the programme the employee’s manager lost patience and charged the employee with misconduct for failing to carry out company rules and his duties. The CCMA found that the employee’s dismissal was unfair as the charges against the employee were vague and the employer should have allowed the programme to run its course and then if unsuccessful, instituted proceedings to terminate the employee’s employment for incapacity.
From the above, it is clear that the safest route when faced with incompatibility is to treat it as a form of incapacity and to proceed in much the same way you would in the case of a poor-performing employee.
Recommendations:
- As a general rule, incompatibility should not be viewed as a stand-alone ground for dismissal.
- Whilst each case should be determined on its merits, where the behaviour is serious enough to impact on the employee’s colleagues and the organisation’s business, the safest approach will always be to treat the employee’s behavior as a species of poor performance and accordingly, institute an appropriate counselling process.
- In this regard, the employee should be advised of in how their behaviour/attitude is unacceptable, be given an opportunity to rectify it, and where reasonably practicable, be given support and assistance to do so (e.g. an employee sensitivity program). Where possible, alternative positions should also be considered.
- It is not sufficient that the employee’s manager subjectively perceives the employee’s behavior as being unacceptable. The employer cannot be overly sensitive to any departures from "the norm" in the particular environment - there must be objective corroboration that the behavior impacts on the harmony of the team and creates discord. Accordingly, as dismissal is regarded as a measure of last resort, to a certain degree, unconventional behavioor, idiosyncrasies and personality flaws may simply have to be tolerated.
- The incompatibility must be attributable to the employee and an employer cannot hold an employee accountable for failing to comply with unreasonable standards or requirements.
- Where applicable, the employee’s employment contract and/or performance goals should stress the importance of harmonious working conditions and make it clear that a key requirement of the job is the ability to work effectively in a team and/or interface and build relationships with clients. This will make it easier to take action when the employee fails to display these attributes.
- An allegation of incompatibility cannot be used as a smokescreen to rid the organisation of an employee for an unlawful reason and our employment law tribunals will interrogate the true reason for the dismissal. As such, incompatibility will not be a defence where the employee is dismissed for enforcing his/her rights against the employer or where it is based on a discriminatory reason (e.g. race, gender, family responsibility, ethnic or social origin, sexual orientation, culture etc.). In these instances, the employee’s dismissal may be found to be automatically unfair. This means that the employee may be reinstated or awarded up to 24 months remuneration as compensation.
In summary, an employer must proceed very carefully before dismissing for incompatibility and only where he/she can objectively show that the employee’s behaviour created disharmony and/or discord.
