Sonja Vorster

I have observed behaviour of employers/employees towards each other and the remarkable change in the workplace atmosphere this can bring about. This normally happens when change of ownership takes place or a change in management.

In with the new and out with the old can bring about insecurity and a definite change of attitude. Former loyal valuable staff can be lost and staff can feel that their opinions are no longer of value.

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The interesting aspect is that employers do not need to prove that they are the ‘boss’, believe me all the staff know who the boss is. I have found that the insecurity of employer/managers can cause great disruption and unhappiness in a workplace.

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A happy and productive place of employment can become the worst place to be in. If, in the employer’s mind, the employee does not submit enough or ‘bow down’ to authority and the formally loyal employee is now seen as a trouble maker, disruptive, disagreeable, pushy, non-compliant, non-submissive, and independent or who merely refuse to ‘suck up’ to the boss type.

This employee can often find themselves being excluded in areas they were previously included in, such as in meetings, decision making and other activities. These employees may soon find themselves on the wrong side of the exit door either by resigning out of mere frustration and unhappiness or being dismissed for some made up wrong doing.

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In the absence of statutory guidance, case after case has confirmed the old principle that the employer is entitled to require harmonious working relationships in the workplace. This principle was developed in the 1987 case of Erasmus vs. BB Bread Ltd (8, ILJ 537).

This laid the basis for employers to act against employees whose conduct is perceived as incompatible with workplace harmony.
In view of this it appears, at first sight, somewhat surprising that so many employers have come off second best after dismissing employees for incompatibility and found themselves facing and losing cases of constructive dismissal.

It is foolishness for employers to use some other pretext in order to get rid of employees with whom they are unable to get along with especially when the employee has an excellent track record with the company.

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In Nathan vs. The Reclamation Group (Pty) Ltd (2002, 23 ILJ 588) a new Operations Director, on joining the company, stripped Nathan, the existing director, of his powers and he was downgraded in position, which humiliated him.

The employee was later dismissed on charges of poor work performance. However, the CCMA found that the apparent poor performance of the dismissed director had been fabricated, and that the real reason for this dismissal was incompatibility between the two directors. The arbitrator therefore found the dismissal to have been unfair. The employer was ordered to reinstate the employee.

Such a reinstatement strengthens the hand of an undesirable employee and makes further action against him extremely difficult.
The employer’s own strong feeling about incompatibility is entirely insufficient.

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This is a key reason for employers to think twice before using incompatibility as the basis for a dismissal. In other words, incompatibility is largely a subjective concept whereas the CCMA and Labour Court want facts and hard evidence rather than feelings.
The above decisions teach employers and managers that, should they believe incompatibility to be a problem in the company, they need to firstly re-examine their own self and the part they may have played in the situation.

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