The National Economic Development and Labour Council (NEDLAC) is currently engaged in a labour law review process. One of the proposed changes is to include “incompatibility” as a specific element of incapacity in Schedule 8 of the LRA, which is traditionally associated with poor performance.

There are instances where the alignment between an employee’s culture/ attributes/ values, and that of the employer is skewed. This misalignment can prejudice performance and company sustainability. Incompatibility, while somewhat intangible, is a very real dimension of the employment relationship. It can be addressed through traditional incapacity procedures that include evaluation, instruction, training, guidance, counselling, representation by a fellow employee, and an opportunity to be heard.

Defining Incompatibility

Incompatibility is viewed as a form of incapacity and relates to the employee’s inability or failure to maintain cordial and harmonious relationships with peers. The employer has the onus of proving not only that incompatibility exists, but that the employee is substantially responsible for the disharmony.

Case Study: PSA obo AH MBIZA and OFFICE OF THE PRESIDENCY GPSSBC MARTIN SAMBO

Facts

The applicant, Mr A H Mbiza, was employed in the Office of the Presidency as a housekeeping manager in the residence of the Deputy President. He was employed on a fixed term contract that was terminated by the first respondent. He referred an unfair dismissal dispute to the General Public Service Sectoral Bargaining Council.

Findings

The arbitrator found that the employee had been dismissed, despite the employer‘s argument that his contract had simply terminated. The arbitrator found that the dismissal was for a fair reason, i.e., incompatibility with the then incumbent Deputy President, Ms Baleka Mbete; but that it was procedurally unfair. He ordered the employer to pay the employee compensation equivalent to three months remuneration for the procedural unfairness.

Legal Principles

An employer must prove that they followed the correct procedure with regard to counselling the employee and affording him/her with an opportunity to put his/her version to the employer and to correct the disharmony with the aim of restoring an amicable relationship.

This case serves as an example that incompatibility, while somewhat intangible, is a very real dimension of the employment relationship and can be addressed through the traditional incapacity procedures.