What can be done about an otherwise competent employee who raises eyebrows about the way in which she works, is generally difficult to work with, or just doesn’t get along with her employer, managers or fellow employees?

It is generally recognised in our law that incompatibility may be a ground for dismissal as a form of poor work performance (incapacity).

Incompatibility can be defined as the inability on the part of an employee to work in harmony either within the 'corporate culture' of the business or with fellow employees.

It was found in Subramuny v Amalgamated Beverages Industries Ltd (2000) 2780 ILJ (LC) that in order to prove incompatibility, independent collaborative evidence in substantiation is required to show that an employee’s intolerable conduct was primarily the cause of the disharmony. The court in Visagie en Andere v Prestige Skoonmaakdienste (Edms) Bpk (1995) 16 ILJ 421 (IC) found that in determining the applicant’s alleged incompatibility, it is appropriate to enquire whether the fault for the disharmony is attributable to the applicant’s conduct in that, he was, unable to fit within the respondent’s ‘corporate culture’ despite attempts by colleagues and the respondent to accommodate him and to remedy the situation. In Lubke v Protective Packaging (Pty) Ltd (1994) 15 ILJ 422 (IC) it was held that the golden rule is prior to reaching a decision to dismiss, an employer must make some 'sensible and genuine efforts to effect an improvement in interpersonal relations when dealing with a manager whose work is otherwise perfectly satisfactory.

In the 2017 case of Watson v South African Rugby Union and Others (C672/15) (2017) ZALCCT 42 the Court provided much needed clarity on the matter by stating that:

“The onus is on the employer alleging incompatibility to demonstrate that the employee in question was responsible substantially for the disharmony or breakdown of relationships at the workplace, and that incompatibility as proven constituted a fair reason for the dismissal in the circumstances of a given case. The fairness of the dismissal in incompatibility cases, turns on a variety of factors including but not limited to:

i.    the nature and the seriousness of the conduct of the employee in causing disharmony with the others;

ii.    the assistance given to the employee to address his or her problem. This may include counselling and facilitating a relationship building by objective exercise;

iii.    placing the employee in another alternative position if the remedial action has failed...

If the employee is believed to be the cause of the problem, he/she has the right to be advised that there is a problem, and be given a chance to resolve it, as a dismissal is always considered a measure of last resort.”

Dismissal based on incompatibility can be fair, but the incompatibility has to be more serious than mere eccentrics or just not getting along. You should consult an employment attorney to ensure you follow the correct procedure in dealing with an incompatible employee.