Skip to main content

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.

 

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?