Poor Performance

An employee should be given the chance to resolve the problem

Ivan Israelstam

Employers frequently wish to get rid of undesirable employees because they are seen as trouble-makers, eccentrics, disruptive, disagreeable, pushy, non-compliant, independent or merely refuse to "suck up" to the boss. Such employees are often labelled as "incompatible" and are fired. Often there is good reason for the employer's drastic action, but just as often, there is not.

In the absence of statutory guidance, case after case has confirmed the old principle that the employer is entitled to require harmonious working relationships in the organisation. This principle was developed in the 1987 case of Erasmus v BB Bread. This laid the basis for employers to act against employees whose conduct is incompatible with workplace harmony. In view of this, it appears somewhat surprising that so many employers have come off second best after dismissing employees for incompatibility.

One of the earliest employers to fall foul of the court's views on this subject was St Mary's Hospital (Wright v St Mary's Hospital, 1992). The employee was dismissed for incompatibility after undermining authority, incitement and losing his temper. The court held that dismissal for incompatibility would only be fair if the employee's conduct resulted in an irretrievable breakdown in relationships.

The employer is required to seek ways of reversing the incompatibility. If the employee is believed to be the cause of the problem, he/she has the right to be given a chance to resolve it. As the court was not satisfied that these principles had been met, it ordered the employer to reinstate the employee. Such a reinstatement strengthens the hand of an undesirable employee and makes further action extremely difficult.

The employer's own strong feeling about incompatibility is entirely insufficient. This is a key reason for employers to think twice before using incompatibility as the basis for a dismissal. In other words, incompatibility is largely a subjective concept, whereas courts and arbitrators want facts and hard evidence rather than feelings.

For example, in Jardine v Tongaat Hulett Sugar Limited, the CCMA found that "there must at least be some other evidence besides the opinion of the employer to establish incompatibility". This is to avoid a boss taking a dislike to an employee for going out with the boss's daughter (or other irrelevant reason) and being able to fire him for incompatibility.

It is folly for employers to use some other pretext in order to get rid of employees with whom they are incompatible. In Nathan v Reclamation Group (Pty) Ltd (2002, 23 ILJ 588) a new operations director, on joining the company, stripped Nathan, the existing director, of his powers, humiliated and downgraded him.

The employee was later dismissed on charges of poor work performance. However, the CCMA found that the apparent poor performance of the dismissed director had been fabricated by the operations director and that the real reason for this dismissal was incompatibility between the two of them.

The arbitrator therefore found the dismissal to have been unfair. And in Cutts v Izinga Acess (Pty) Ltd (2004, 8 BLLR 755) the employee was retrenched. However, the Labour Court found that the real reason for the dismissal was incompatibility between the employee and some fellow managers. The employer was therefore required to compensate the employee to the tune of six months' remuneration.

The above decisions teach employers that, should they believe incompatibility to be a problem in the organisation, they need to:

  • Investigate objectively and gather the facts.
  • Avoid ignoring the incompatibility problem and fabricating some other pretext for dismissal.
  • Keep an open mind. If the investigation shows that incompatibility is not the problem or that it is not the fault of the employee being investigated, the employer must deal with the true problem uncovered.
  • Make a clear and genuine effort to reverse the incompatibility if there is any.

Where dismissal becomes a real option:

  • First gather true facts to prove that the incompatibility is the employee's fault, prove that genuine and concerted efforts to rectify the problem have failed and prove that the incompatibility has irretrievably damaged the working relationship.
  • Use the best labour-law expertise available to make sure that the employer has followed all the necessary steps correctly and that dismissal is truly the right option.

Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011-888-7944 or via e-mail: [email protected]

Our appreciation to Ivan and The Star newspaper for permission to publish this article.


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