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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.

 

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?