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How to manage the employment relationship where the employee is unable to get on with fellow employees (incompatibility)

An employer is entitled to insist on reasonably harmonious relationships within its business. An employee may not act in a way which results in disharmony or disruption and a breakdown in relationships at work.

“Incompatibility” refers to, for example, an employee not fitting in with the organisational values of the employer, an inability to work in harmony within the business environment or with fellow employees, not being a “team player”, having negative personality differences and creating friction between employees. The employee may perform the job competently, or very well, but displays offensive and inappropriate characteristics and conduct that results in him or her not getting on with colleagues, subordinates, or superiors and which may make him/her unsuitable to the effective running of the work environment.

Incompatibility is a form of and falls under the heading of incapacity. Examples are where a new manager out of the blue is unreasonably intolerant of behaviour accepted as normal in the workplace creating a stressful, toxic atmosphere; where a new employee in a conservative work environment acts in an
inappropriate manner, causing concern, embarrassment, and disruption, despite performing assigned duties perfectly. Another example is where an employee insists on talking loudly with others at his/her desk, when the work environment is a quiet or conservative and focused one.

Caution must be exercised when behaviour may have its origin in cultural, religious, or other differences. Tolerance for diversity should be exercised and employers need to be sensitive to these differences. Reasonable efforts should be made to accommodate differences, as long as these do not impede on the
rights or well-being of others and the effective of the work environment.

The following preliminary steps should be taken:

1. Assess the compatibility of the employee by gathering objective supporting evidence, besides mere opinions, which establishes incompatibility. There must also be sufficient reason to believe that the employee’s behaviour is serious in nature with the effect of causing deep and genuine offence or distress, friction and disruption in the workplace. Part of the investigation is to ensure that complaints received from co-employees are genuine and are not merely underhanded attempts to get rid of the employee.
2. Ensure that the employee’s conduct is the main cause of the disharmony or friction in the workplace. Do not make assumptions – gather facts.

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How to consult with an employee in a fair manner based on incompatibility:

1. Advise the employee that you wish to consult with him/her about alleged incompatibility based on certain issues / incidents / reports by serving him/her with reasonable advance notice.
2. Advise the employee that s/he may bring a representative to the consultation. This may be a fellow employee or a trade union representative (shop steward). Assistance by a registered trade union only applies if a trade union has been granted organizational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is a fellow employee.
3. Should the employee require the assistance of an interpreter, advise the employee that s/he may bring a fellow employee to the counselling session to assist as an interpreter.
4. Arrange a venue for the consultation and inform relevant persons of need to attend on proper notice (for example a manager or supervisor and affected employees.
5. State the purpose of the consultation and how it will run. Advise the employee if the proceedings will be recorded, and if you will be taking notes.
6. Outline the fact that an employer is entitled to require a work environment which is harmonious, cooperative and that operates with the minimum of friction amongst employees.
7. Set out the reports / incidents / issues which led to the consultation and what impact this is having on colleagues and on productivity.
8. Provide hard evidence (details of complaints, grievances) to back up the allegation – avoid general observations. Explain how the employee’s conduct / behaviour / management style has upset people or caused disruption, disharmony, confusion, unhappiness, creating a hostile, toxic, unhappy or disharmonious work environment.
9. Give the employee and his/her representative an opportunity to respond and comment. Listen actively and respond to any concerns raised by the employee.
10. 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.
11. Agree and record behaviours to be achieved as well as a reasonable time for him/her to demonstrate such changed behaviour.
12. Plan any future training or coaching, if appropriate, to achieve the desired behaviours.
13. Provide a written summary of objectives which the employee is expected to achieve (for example: no grievances or complaints, improved productivity, less downtime).
14. The objectives should be agreed with the employee, as well as a clear and reasonable time-frame within which to demonstrate improvement. Where the employee does not agree, the employer may determine these without the employee’s consent.
15. Obtain the employee’s commitment to providing feedback and requesting help if required, by establishing a channel for open, two-way communication between the employee and his manager or other appointed coach / mentor / guide.
16. Explain that continued incidents reflecting incompatibility could possibly lead to termination of employment.

After this consultation, the employee’s behaviour must be monitored and recorded as agreed.

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

Prior to convening a final hearing in order to decide whether or not to dismiss an employee for incompatibility, consider whether the incompatibility is ongoing, serious and potentially damaging to the business. If it is so, it will need to be dealt with finally.[/vc_column_text][vc_column_text]

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Who may issue and sign medical certificates?

Section 23 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) deals with proof of incapacity and states:

“(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.”

From this section of the BCEA it is clear that there are two requirements in order for a medical certificate to be a valid medical certificate:

• It must state that the employee was unable to perform his/her normal duties as a result of illness (or an injury) and must be based on the professional opinion of the medical practitioner.
• The second requirement is that the certificate must be issued by a medical practitioner.

In other words, a certificate that states that the practitioner “saw the patient” or “was informed by the patient” is not considered to be a valid medical certificate since the practitioner did not declare in his/her professional opinion that the employee was unable to perform his/her normal duties as a result of illness (or an injury). Such certificates are merely an indication that the practitioner saw the patient, for example a check-up, or that s/he was informed that the patient was unfit for duty.

Some contracts of employment or specific conditions may also require that an employee produce a medical certificate in certain circumstances, for example, if the employee has been warned about the abuse of sick leave.

What is the definition of a medical practitioner?

A medical practitioner is described in the definitions of the Basic Conditions of Employment Act as:

 ‘‘. . . . a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act 56 of 1974”

In terms of this Act, the following professionals are considered to be medical practitioners:

• Medical practitioners (doctors) that are registered with the Health Professions Council of South Africa;
• Dentists that are registered with the Health Professions Council of South Africa;
• Psychologists with a master’s degree in educational, counselling or clinical psychology that are registered with the Health Professions Council of South Africa.

The above mentioned Act makes reference to the Allied Health Service Professions Act 63 of 1982.

Practitioners mentioned in this Act must be registered with the Allied Health Service Professions Council in order to issue medical certificates. Employers must accept medical certificates from such practitioners as proof of incapacity in terms of the Basic Conditions of Employment Act.

A practitioner is defined in terms of the aforementioned Act as a person registered as an:

• Acupuncturist;
• Ayurveda practitioner;
• Chinese medicine practitioner;
• Chiropractor;
• Homeopath;
• Naturopath;
• Osteopath;
• Phytotherapist; or
• Unani-tib practitioner.

Proof or registration may be requested by the employer.

In terms of case law, a certificate from a traditional healer may also be acceptable. The World Health Organisation defines traditional medicine as follows: “It is the sum total of the knowledge, skill, and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not,
used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness.” (https://www.who.int/health-topics/traditional-complementary-and-integrativemedicine#tab=tab_1 Date of access: 28 March 2021).

The Supreme Court of Appeal (SCA) in Kivietz Kroon Country Estate (Pty) Ltd v Mmoledi & others [2014] 3 BLLR 207 (SCA); [2014] 35 ILJ 209 (SCA) (29 November 2013), stated that courts (also applicable to employers) should evaluate the sincerity of the person’s belief in religious doctrine or cultural practices as opposed to that employee using such beliefs, cultural practice, or religious doctrine for ulterior motives. It is not the role of the Courts or of employers to “evaluate the acceptability, logic, consistency or comprehensibility of the belief.” Thus, employers are called to manage situations where employees rely on
alternative forms of treatment such as that provided by Traditional Healers with sensitivity and to rather seek advice when unsure of how to manage situations purportedly arising from a religious doctrine or cultural practice or belief.[/vc_column_text][vc_column_text]

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How to manage the employment relationship where the employee is unable to work due to sickness or injury (ill health / injury)

A situation may arise where an employee is unable work at all; or cannot do certain aspects of his/her job or is absent so often that it disrupts the employee’s ability to do the job s/he is employed for.

If an employee is temporarily unable to work or to do certain aspects of the job and it is likely that the employee will be absent for a reasonably short period of time, the employer should consider alternatives short of dismissal. An example would be where a shop assistant has broken a leg, is on crutches and cannot stand for long periods.

If an employee is permanently unable to do the work, the employer should reasonably consider possible adaptations to the job or alternative work, prior to dismissal.

If an employee has become temporarily or permanently incapacitated or disabled as a result of a work-related accident or injury, the responsibility of the employer to accommodate the employee is greater in terms of Schedule 8 to the Labour Relations Act 66 of 1995 (LRA), the Code of Good Practice: Dismissal.

People with disabilities constitute a special group and unfair dismissal of such employees on grounds of ill health is very serious, as there is a duty on the employer to attempt to reasonably accommodate employees with disabilities.

The cause of the ill health may also be relevant. In the case of alcoholism or drug abuse an employer may have to consider counseling and rehabilitation, or a final written warning, as appropriate steps to take before ending the employment relationship.

In the case of incapacitated employees, dismissal may be an option if the accommodation required by the employee imposes unreasonable hardship on the employer. Hardship means more than mere inconvenience.

The employer must distinguish between employees who are temporarily or permanently incapacitated on the grounds of ill-health or injury as well as those who abuse sick leave which is a form of misconduct.

The following preliminary steps should be taken:

1. If an employee cannot perform adequately due to illness, request a medical certificate, report or statement from the medical practitioner which indicates the period the illness is likely to affect work performance and what type of work the employee may / may not perform.
2. Assess the medical report against the nature of the job and the period of absence or inability to perform certain aspects of the job. Discuss the impact of the illness on the employee’s ability to work with the employee’s supervisor / manager.
3. Consider alternatives: The possibility of securing temporary replacement for the employee; job-swopping with another employee for a period or re-assigning / adapting jobs between employees to accommodate the ill employee; short time or paid or unpaid leave of absence can be considered. Use the following checklist to assist:

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[/vc_column_text][vc_column_text]What steps must an employer take to assist an employee who is unable to work due to sickness or injury?

An employer must meet with the employee to investigate and discuss the employee’s sickness or injury to determine the nature and extent of it.

How to consult with an employee in a fair manner where the employee is unable to work due to sickness or injury:[/vc_column_text][vc_column_text]

1. The employer must invite the employee to meet and discuss the employee’s ill health / injury to determine the nature and extent of it. The employee must be given proper notice of this meeting.
2. Advise the employee that s/he may bring a representative to the consultation. 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 organizational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is a fellow employee.
3. Should the employee require the assistance of an interpreter, advise the employee that s/he may bring a fellow employee to the counselling session to assist as an interpreter.
4. Arrange a venue for the consultation and inform the relevant persons of the need to attend (for example manager or a supervisor).
5. State the purpose of the meeting and how it will run. Advise the employee to prepare properly for the meeting and bring relevant documents that s/he considers necessary to present. Inform the employee that you will be taking notes and/or recording the proceedings.
6. Go through the medical documentation and other relevant factors. Ensure that the privacy of the employee is respected and that confidential information is only used with his/her permission and for the intended purpose.
7. Explain that you want to discuss ways in which the impact on the company may be minimised without negatively impacting on the employee’s condition.
8. Explain how the employee’s role contributes to your business success and that an employer has the right to enquire about the illness that may impact on performance of duties.
9. Give the employee / representative the opportunity to comment.
10. The employer together with the employee and his/her representative should look at ways to accommodate the employee taking into consideration the nature and extent of the ill health/injury and the implications for the employer/the business or organisation.
11. The employer should listen actively and open up the discussion if there are disagreements. The employer should listen and respond to the employee’s concerns.
12. The employer should propose and seek acceptance of alternatives that the employer believes are feasible in the circumstances, for example, adapting facilities to make them accessible; adapting equipment or acquiring new equipment to assist; re-organising a workplace or workstation; restructuring
    jobs; re-assigning aspects of jobs; adjusting work-hours; etc. Should any suggestion or option presented by the employee not be feasible for the employer, then the employer should provide valid reasons for this. In some circumstances, it may be necessary for an employer to “test” whether an
    option would be feasible or not.
13. Once a way forward has been agreed, the employer should provide a written summary of agreement which indicates clear time-frames, linked to the medical report(s) and prognosis. Failing agreement, the employer may make a determination after having taken into account relevant information. This should be followed by a written summary of the decision.
14. Where applicable, the adaptations should be agreed with the employee as well as a clear and reasonable time-frame during which his/her inability will be accommodated, if possible. Monitoring and reviewing the time-lines and who will conduct it should be determined.
15. The employer should obtain the employee’s commitment to providing feedback and requesting help if required, by establishing a channel for open, two-way communication between the employee and his/her manager.
16. The employer should also explain that continued illness after the current time-frame assessed for healing by the medical practitioner, might lead to termination of employment.

Note:

The employer has the right to request the employee to submit to a medical assessment by its own medical professionals, if there is any doubt as to the accuracy of the medical information provided by or on behalf of the employee.

Should the employee not manage with the measures that the employer has implemented to accommodate the employee, and the employer is satisfied that it has done everything reasonably possible to assist the employee, the employer may convene a final hearing to address the situation and to make a final decision as to the way forward.

Or alternatively:

Where all alternatives are investigated during the first consultation meeting and no suitable alternatives are found to reasonably accommodate the employee, given the nature and the extent of the ill health / injury, the employer may terminate the employee’s services on the grounds of ill health / injury. An unreasonable failure by the employee to accept reasonable alternatives proposed by the employer may also lead to termination of the employee’s services.[/vc_column_text][vc_column_text]

How to manage employees affected by HIV and AIDS

In terms of item 11 of the Code of Good Practice on Key Aspects of HIV/Aids and Employment, employees with HIV/AIDS may not be dismissed solely on the basis of their HIV/AIDS status. If an employee has become too ill to perform his/her work, the employer must follow the guidelines for dismissal for incapacity contained in the Code of Good Practice: Dismissal. The employer must ensure that the employee’s right to confidentiality regarding his/her HIV status is maintained and an employee may not be compelled to undergo an HIV test or disclose his/her status as part of such proceedings unless the Labour Court has authorised such a test after an application to the Labour Court has been made. It is advisable for an employer to be familiar with the guidelines contained in the Code of Good Practice: Key Aspects Of HIV/AIDS and Employment.[/vc_column_text][vc_column_text]