The test for the substantive fairness of a dismissal for incompatibility may be formulated as follows:

• Did the employee’s conduct cause disharmony or tension in the work place?
• Was the disharmony and tension the result of the employee’s behavior?
• Was the disharmony and/ or tension irremediable?
• Did the disharmony and/ or tension have an adverse or potentially adverse effect on the employer’s business?
• Was the termination of the employee’s contract the only reasonable way in which the cause of the disharmony and/ or tension could be removed?

Furthermore, the incompatibility must have caused an irremediable breakdown if dismissal is to be accepted as a fair solution to the problem. As with all forms of dismissal, dismissal for incompatibility is an expedient of last resort; dismissal is not generally accepted as justified if the employee has not been counselled; or where it is possible without undue inconvenience to accommodate the employee in an alternative position.

incompatibility

Where there is incompatibility the employee must be advised what conduct allegedly causes the 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 a reply thereto; that he given a proper opportunity of putting his version; and that where it was found that he was responsible for the disharmony he must be given a fair opportunity to remove the cause for the disharmony.

For further information on any labour related matters, you can contact
Bernard Reisner:

W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za