Article 08/2021

Labour Edge

How should incompatibility be dealt with and what is the approach adopted recently by the labour court in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC)?


  1. In Jabari v Telkom SA (Pty) Ltd (2006) 27 ILJ 1854 (LC), at paragraphs [3]–[5], the labour court characterised a dismissal based on incompatibility in the following terms;

‘[3]     An employer is entitled, where the conduct of an employee creates disharmony, to –

  • evaluate the nature and seriousness of the problem, address same, and assist the employee to overcome his personal difficulties; and
  • effect remedial action, and if unsuccessful, to place the employee in a position suitable to his qualifications and experience.

[4]      In order to prove incompatibility, independent corroborative evidence in substantiation is required to show that an employee’s intolerable conduct was primarily the cause of the disharmony.

[5]      In determining the applicant’s alleged incompatibility, it is appropriate to enquire whether the fault for the disharmony is attributable to the applicant’s conduct in that, he was unable to fit within the respondent’s ‘corporate culture’ despite attempts by colleagues and the respondent, to accommodate him and to remedy the situation or that his conduct was unacceptable or unreasonable.’

  1. This characterization of incompatibility was also adopted by the labour appeal court in South African Rugby Union v Watson and Others (2019) 40 ILJ 1052 (LAC), at paragraph [30].
  2. The type of incompatibility complained of in this instance was clearly premised on the employee in Wereley having been found to have acted in an unacceptable or unreasonable manner. The PSA had been intending to lead evidence of this in the inquiry and Wereley was to be given a chance to respond to it. Though the PSA had tried to avoid characterising her actions as further acts of misconduct, essentially that was what the PSA had accused her of. There had been no reason in principle why that inquiry should not have followed the normal procedure of a disciplinary inquiry, as it was obviously misconduct for an employee to foster and aggravate a disharmonious working environment.
  3. The labour court was alive to the other possibility that incompatibility might conceivably be dealt with as an operational requirements matter, which could lead to the employer following a path of retrenchment.

 

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?