An investigation of incompatibility as a valid ground for dismissal in South African labour law : a critical appraisal of global best practices

Abstract

Section 188 of the Labour Relations Act 66 of 1995 gives cognisance to misconduct and incapacity due to poor performance or ill health and/or injury and the employer's operational requirements as valid grounds for dismissal in the South African labour law. The LRA, however, does not provide any statutory recognition or guidance on incompatibility as an acceptable ground for dismissal, though it has been recognised as such by various South African courts and other dispute resolution tribunals in a number of cases. It has been established that incompatibility refers to an employee’s inability to work harmoniously with fellow employees and/or the employer due to personality clashes, differences and/or failure to fit in with the "corporate culture" in the workplace. This thesis recognises the significance of interpersonal relationships and harmonious relations in the workplace as these are amongst the crucial components that contribute to a healthy and well-functioning business and labour market. Against this backdrop, this thesis contends that employers must be allowed to dismiss employees, whose attitude, behaviour or character can potentially harm the business or cause undue hardship for the employer or other employees, due to their disruptive nature. This thesis seeks to investigate the suitability of incompatibility as a separate and legitimate ground for dismissal in terms of the LRA. In the absence of statutory guidelines and processes that regulate dismissals based on incompatibility, legal uncertainty as to how to properly and fairly deal with these matters exists. It is unclear how employers and the courts should deal with the dismissal of employees who are considered incompatible for being "different", quirky or for their unique conduct arising from their cultural practices and/or beliefs. It is further submitted that there is no clarity as to what constitutes a "corporate culture" in the workplace in this regard, and no consensus whether incompatibility falls under misconduct, incapacity or operational requirements, or whether it should be regulated as an entirely separate ground for dismissal. This thesis advances the proposition that there is a need for statutory and regulatory reform on the matter to provide legal recourse for employers when dealing with disruptive and/or intolerable employees. By the same token, it is submitted that statutory and regulatory reform on the topic will provide a level of protection to employees from arbitrary dismissal by the employer. As a member and signatory of the International Labour Organisation (ILO), South Africa has an obligation to ensure that its domestic legislation falls within the core ILO labour standards. This thesis submits that the ILO conventions and recommendations regarding termination of employment and discrimination in the workplace can provide direction when developing guidelines and procedures which regulate incompatibility dismissals in South African labour law. In this thesis, an analysis of best practices in New Zealand and Australia was undertaken. The New Zealand and Australian courts have dealt with incompatibility disputes and developed substantive and procedural principles in this regard. This thesis recommends South Africa to draw lessons from these established principles, and along with its common law principles identified by the courts, develop a clear set of guidelines, regulating incompatibility as a legitimate, statutory ground for dismissal in South African labour law. In the process, the rights and interests of both the employer and employee can properly be served.