Incompatibility to Corporate Culture

The ‘hard measurement’ of managing poor performance is typically fairly easy. A salesperson is to sell a certain amount of products per month, and if he does not achieve this result, the subsequent counselling session will be fairly straight forward.

The same cannot be said of the ‘soft measurements’ of performance management. Occasionally a company will face a frustrating challenge in that a certain employee seemingly is incompatible with the culture of the company and causes disharmony in the workplace. Disunity and frustration, resultant from an improper fit, can hold dire consequences to the performance of the department, or company as a whole, depending on the position such an individual holds in the company. Instead of focussing on achieving the overall objectives of the company, employees now have an inward focus trying to make sense of politics at play between them.

Considering that incompatibility issues are by nature very subjective, how does an employer go by dealing with such matters?

 In Jabari vs Telkom SA (Pty) Ltd, Mr. Jabari was dismissed following an incompatibility enquiry on the 31st of August 2004. The employee filed a dispute relating to an automatic unfair dismissal in terms of Section 187 (1) (c) (d) to the CCMA. Conciliation remained unresolved and the employee referred the dispute to the Labour Court.

 The applicant alleged that the respondent dismissed him for initiating grievance proceedings against the respondent’s management and also for rejecting a voluntary severance package offered him by the respondent.

 In the respondent’s statement of defense, the employer argued that the applicant was dismissed because the employment relationship was no longer based on mutual respect, trust and honesty as a result of the applicant’s incompatibility in that the applicant was approached to discuss an amicable way of terminating the employment relationship, and, the applicant was offered a severance package, which the applicant refused.

 The respondent further argued that the employment relationship caused frustration among other employees the applicant had to interact with on a daily basis, that the trust relationship became intolerable due to the unnecessary taking up of the respondent’s resources, that the applicant continuously litigated against the company on various issues, in most cases the applicant was unsuccessful or withdrew the matters before the CCMA or the Labour Court. In addition, the applicant sent threatening emails to his senior, Ntleru.

 During cross examination the respondent, however conceded that the grievances submitted by the applicant was valid labour disputes relating to the promotion of employees in breach of the company’s policies, through the use of fraudulent cv’s and circumstances whereby those promoted did not had the required skills and qualifications. In addition, the respondent further conceded that the reason why the applicant could not attend or followed through on the litigation was due to the CCMA using the incorrect referring details and that the subsequent rescission application by the applicant was successful and on another instance the applicant was ill and had a medical certificate to prove same.

 The court found that, contrary to the claim of the respondent, that no evidence or recordings exist that can substantiate their claim that they had various counselling sessions with the applicant. In addition, the respondent conceded that no disciplinary action was taken against the applicant due to his alleged insubordination. The court also did not agree that the applicant sent any threatening emails, as he was merely expression his view in the matter without threatening his senior. The court indicated that based on the settlement agreement offered, it was clear that the respondent wanted to terminate the applicant’s services at all cost as in the agreement, the respondent offered to pay the applicant for withdrawing all pending cases against it.

 The Labour Court stated that incompatibility is a specie of incapacity and relates, essentially, to the subjective relationship of an employee and other co-workers, regarding the employee’s inability or failure to maintain cordial and harmonious relationships with peers. Incompatibility is based on subjective value judgements.

 As such, the employer has the prerogative to set reasonable standards pertaining to the harmonious interpersonal relationships at the workplace. Where the conduct of employees creates disharmony, the employer should; a.) evaluate the nature and seriousness of the problem, address same and assist the employee to overcome his personal difficulties; b.) effect remedial action , and if unsuccessful, to place the employee in a position suitable to his qualifications and experience.

 The Court further stated:

 “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. See Subramuny v Amalgamated Beverages Industries Ltd [2000] 2780 ILJ (LC) at page 2789 GH.”

 In determining the employee’s alleged incompatibility an employer should enquire whether the fault for the disharmony is attributable to the employee’s conduct in that he was unable to fit within the employer’s corporate culture despite attempts by colleagues, and the employer to accommodate him and to remedy the situation or that his conduct was unacceptable or unreasonable.

 The Court advised on the procedure:

 “The appropriate procedure in establishing whether an employee is incompatible was defined in the case of WRIGHT V ST. MARYS HOSPITAL (1992) 13 ILJ (IC) AT 1004H, as follows; “The employee must be advised what conduct allegedly causes

disharmony; who has been upset by the conduct; what remedial action is suggested to remove the incompatibility; that the employee be given a fair opportunity to consider the allegations and prepare his reply thereto; that he be given a proper

opportunity of putting his version; and where it is found that he was responsible for the disharmony, he must be given a fair opportunity to remove the cause for disharmony.”

 In casu, the Court ruled that the applicant was not afforded an opportunity to confront the alleged disharmonious behavioral conduct he was accused of. The dismissal of the applicant was subsequently ruled as an automatic unfair dismissal.

 What we learn from this case is the importance of having a policy in place that provides for harmonious relationships in the workplace, that an employees must be informed of conduct that allegedly causes disharmony, who has been upset by the conduct, what remedial action is suggested to remove the incompatibility, that the employee had been given a fair opportunity to consider these allegations and to be given an opportunity to put his version and to remove the cause of the disharmony.

 It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email: [email protected] or www.effectusharmony.co.za