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.

 

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.