An employer is entitled to insist on reasonably harmonious relationships within its business. An employee may not act in a way which results in disharmony and a breakdown in relationships at work.
“Incompatibility” refers to, for example, an employee not fitting in with the organisational values of the employer, an inability to work in harmony within the business environment or with fellow employees, not being a “team player”, having personality differences and creating friction between employees. The employee may perform the job competently, or even well, but displays offensive and inappropriate characteristics and conduct that result in him or her not getting on with colleagues, subordinates or superiors and which may make him/her unsuitable.
Incompatibility is a form of incapacity. Examples are where a new manager out of the blue is unreasonably intolerant of behaviour accepted as normal in the workplace such as eating at one’s desk; where a new employee in a conservative work environment acts in an inappropriate manner, causing concern, embarrassment and disruption, despite performing assigned duties perfectly. Another example is where an employee insists on playing loud music at his/her desk, when the work environment is a quiet and focused one.
Caution must be exercised when behaviour may have its origin in cultural, religious or other differences. Tolerance for diversity should be exercised and employers need to be sensitive to these differences.
The following preliminary steps should be taken:
- Assess the compatibility of the employee by gathering objective supporting evidence, besides mere opinions, which establishes incompatibility. There must also be sufficient reason to believe that the employee’s behaviour is serious in nature with the effect of causing deep and genuine offence or distress, friction and disruption in the workplace. Part of the investigation is to ensure that complaints received from co-employees are genuine and are not merely underhanded attempts to get rid of the employee.
- Do not make assumptions – gather facts.
How to consult with an employee in a fair manner based on incompatibility:
- Advise the employee that you wish to consult with him/her about alleged incompatibility based on certain issues / incidents / reports by serving him/her with a notice.
- Advise the employee that s/he may bring a representative to the consultation. This may be a fellow employee or a trade union representative (shop steward). Assistance by a trade union official only applies if a trade union has been granted organizational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is a fellow employee.
- Should the employee require the assistance of an interpreter, advise the employee that s/he may bring a fellow employee to the counselling session to assist as an interpreter.
- Arrange a venue for the consultation and inform relevant persons of need to attend (for example a manager or supervisor).
- State the purpose of the consultation and how it will run. Advise the employee if the proceedings will be recorded, and if you will be taking notes.
- Outline the fact that an employer is entitled to require a work environment which is harmonious, cooperative and that operates with the minimum of friction.
- Set out the reports / incidents / issues which led to the consultation and what impact this is having on colleagues and on productivity.
- Provide hard evidence (complaints, grievances) to back up the allegation – avoid general observations. Explain how the employee’s conduct / behaviour / management style has upset people or caused disruption, disharmony, confusion, unhappiness, creating a hostile, unhappy or disharmonious work environment.
- Give the employee and his/her representative an opportunity to respond and comment. Listen actively and respond to any concerns raised by the employee.
- Clearly identify the conduct of the employee causing problems and indicate the desired behaviours or conduct required. Provide sensible and practical advice where possible. Probe areas where the employee may benefit from counselling or coaching from an experienced senior, if available.
- Agree and record behaviours to be achieved as well as a reasonable time for him/her to demonstrate such changed behaviour.
- Plan any future training or coaching, if appropriate, to achieve the desired behaviours.
- Provide a written summary of objectives which the employee is expected to achieve (for example: no grievances or complaints, improved productivity, less downtime).
- The objectives should be agreed with the employee, as well as a clear and reasonable time-frame within which to demonstrate improvement. Where the employee does not agree, the employer may determine these without the employee’s consent.
- Obtain the employee’s commitment to providing feedback and requesting help if required, by establishing a channel for open, two-way communication between the employee and his manager or other appointed coach / mentor / guide.
- Explain that continued incidents reflecting incompatibility could possibly lead to termination of employment.
After this consultation, the employee’s behaviour must be monitored and recorded as agreed.
Should the employee not improve and the employer is satisfied that it has done everything reasonably possible to assist the employee, a final hearing may be convened to address the situation and to make a final decision as to the way forward.
Prior to convening a final hearing in order to decide whether or not to dismiss an employee for incompatibility, consider whether the incompatibility is ongoing, serious and potentially damaging to the business. If it is so, it will need to be dealt with finally.
Please contact our 24/7 helpline to ensure you are following the correct procedures at all times
Source: CCMA & Busa Webtool