Article 21/2022

What are the incompatibility principles recently identified by the labour appeal court in, inter alia, Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk?

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  1. In Mgijma v Member of the Executive Council, Gauteng Department of Education (2014) 25 SALLR 558 (LC), incompatibility was identified as the inability or failure of an employee to maintain a harmonious relationship with his or her colleagues and relevant factors that needed to be considered included the following:
  • personal conflicts
  • management style
  • inability to integrate into culture and the environment
  • lack of confidence
  • not being able to do the job according to the owner/senior colleague
  1. in Zeda Car Leasing, such non-harmonious relationship was analysed with reference to the corporate culture of the business and not getting on with fellow employees;
  2. in Jabari v Telkom SA [2006] 10 BLLR 924 (LC) and Zeda Car Leasing, incompatibility was categorised as incapacity in terms of s188 of the LRA.  The onus is on the employer to prove that the employee is responsible for the disharmony in the workplace
  3. Mgijma identified the following obligations of an employer when dealing with the alleged incompatibility:
  • the institution of remedial action
  • providing assistance to solve incapacity, including counselling and relationship-building by objectives
  • giving the employee the opportunity to consider the allegations and preparing a response
  • providing the employee with the opportunity of putting his or her version
  • if it is found that the employee is responsible for the disharmony, the employee must be provided with an opportunity to remove the cause of disharmony
  • the employee must be placed in an alternative positon if remedial action has failed

See also Wright v St Mary’s Hospital (1997) 13 ILJ 987 (IC); SA Quilt Manufacturers v Radebe (1994) 15 ILJ 115 (LAC)

  1. if it is found that a senior employee is responsible for the said incompatibility, a more flexible approach than what is set out above may be followed

Brereton v Bateman Industrial Corporation (2000) 21 ILJ 442 (IC)

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).