How to end the employment relationship in a fair manner where the employee is unable to get on with fellow employees (incompatibility)

In the How to Guide on “How to manage the employment relationship in a fair manner where the employee is unable to get on with fellow employees”, the following guidelines are recommended for managing an incompatible employee:

• The employer should assess the compatibility of the employee by gathering objective supporting evidence, which establishes incompatibility.
• Advise the employee that you wish to consult with him/her.
• Clearly identify the conduct of the employee causing problems and indicate the desired behaviours or conduct required.
• Provide sensible and practical advice where possible. Probe areas where the employee may benefit from counselling or coaching from an experienced senior, if available.
• Give the employee adequate support, means and time to remedy shortcomings and to adapt behaviour.

Should the employee not improve, and the employer is satisfied that it has done everything reasonably possible to assist the employee, a hearing may be convened to address the situation and to make a decision as to the way forward.

Prior to convening a hearing in order to decide whether or not to dismiss an employee for incompatibility, an employer should consider whether the incompatibility is ongoing, serious and potentially damaging to the business.

If this is the case, it is advisable for the employer convene a hearing.

How to conduct a fair hearing in respect of an employee who is unable to get on with fellow employees:

1. 1. Arrange a chairperson and suitable hearing venue and notify relevant participants. The chairperson’s role is to assess the claimed incompatibility by listening to both the employee’s supervisor/manager and the employee, ultimately deciding whether the employee is indeed incompatible. In larger companies it is common to have a designated chairperson, but in smaller businesses, the owner may take on this responsibility in addition to presenting evidence relating to the employee’s incompatibility.
   2. Give the employee a notice to attend an incompatibility hearing.
   3. Advise the employee that s/he may bring a representative to the hearing. This may be a fellow employee or a trade union representative (shop steward). Assistance by a trade union representative only applies if a trade union has been granted the right to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee in his/ her capacity as a fellow employee.
   4. Should the employee require the assistance of an interpreter, advise the employee that s/he may bring a fellow employee to the hearing to assist as an interpreter.
   5. Ensure that the employee is aware of and understands the purpose of the incompatibility hearing and explain how the hearing will be conducted.
   6. The employee’s supervisor/manager should outline the expected behaviours, previous consultations, commitments, and efforts made to improve the employee’s behaviour.
   7. The employee’s supervisor/manager should provide details regarding the reports, incidents, and issues that necessitated the hearing, along with the impact of these occurrences and the behaviour on colleagues and the employer. Evidence to support the incompatibility could include complaints, grievances, and specific instances. Avoid vague generalizations.
   8. The employee’s supervisor/manager should describe how the employee’s behaviour, conduct, or management style has caused unrest, disruption, disharmony, confusion, and unhappiness, leading toa hostile or discordant work environment that hasn’t improved despite prior interventions. The employee’s supervisor/manager should also explain any ongoing negative impact on productivity and other aspects in the workplace.
   9. The employee’s supervisor/manager may call witnesses.
   10. Give the employee and his/her representative the opportunity to respond and to call witnesses if required.
   11. If witnesses are called, give the supervisor/manager and the employee and his/her representative the opportunity to question the witness.
   12. Adjourn the hearing to make a finding. Consider the following checklist which is based on the requirements for a fair dismissal for incompatibility.

13. If the answer to each of the above is “yes”, the employee may be dismissed if no other alternatives are reasonably available and viable under the circumstances.

14. Once a decision is made, reconvene the hearing and advise the employee of the decision.

15. If the decision is to dismiss the employee explain why this decision was reached and advise the employee of his/her right to refer an unfair dismissal dispute to the CCMA or a bargaining council within30 days if he / she believes the dismissal is unfair.

16. Provide the employee with the decision in writing.