INCOMPATIBILITY AND THE DIFFICULT EMPLOYEE

INCOMPATIBILITY AND THE DIFFICULT EMPLOYEE Randall van Voore Bowman Gilfillan Attorneys University of Cape Town: Institute of Development and Labour Law

Incompatibility and the difficult employee • repudiation of employment contract requiring no more than acceptance? • senior managerial employee as the new broom • the serial disputant • the angry scribe • the extreme eccentric • the common law, the LRA – different standards? • proposed procedure

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • Fijen, a marine pollution engineer was employed by Council for Scientific and Industrial Research (CSIR) dismissed with effect from 30 April 1992 • Until beginning of 1992 Fijen had been a conscientious and competent employee • towards beginning of 1992 ‘a confidence crises’ developed • December 1991 the CSIR received information (from a co-worker) to the effect that Fijen had breached his conditions of service – he allegedly offered to do private work for remuneration without the CSIR’s consent

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • January 1992 Fijen and his co-employee charged with misconduct, Fijen and co-employee refused to testify, found not guilty on the basis that the charges had not been proved (beyond reasonable doubt) • alleged conduct had severely damaged the working relationship • after the hearing, Fijen’s divisional head (also chairman of the hearing) had a discussion with him to ‘smooth the working relationship’

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • Fijen was of the view that actions of CSIR largely responsible for fact that he did not consider a normal working relationship to be possible any longer • in particular Fijen was of the view that the disciplinary hearing and associated steps were wholly unnecessary and could have been clarified during ‘an initial discussion’, Fijen convinced that the divisional head and the witness at the disciplinary enquiry were biased

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • exchange of correspondence between Fijen and CSIR followed • whilst not tendering his resignation Fijen enquired whether voluntary redundancy would be an appropriate mechanism for terminating the working relationship • CSIR took umbrage at Fijen’s allegations against it, defended its decision to take disciplinary action and ruled out any negotiation on an alleged voluntary retrenchment as Fijen’s position was a key position

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • CSIR would not consider declaring it redundant because it would jeopardize the CSIR’s future operational viability. • following further correspondence CSIR took the view that Fijen had repudiated his employment contract and it accepted his repudiation. • Fijen alleged that he was dismissed, the CSIR contended that it merely accepted Fijen’s repudiation of his employment contract.

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • Appellate Division (Supreme Court of Appeal) Fijen did not repudiate his employment contract in the narrow sense • But that is not the end of the enquiry, “the correct question to ask appears…to be whether the [CSIR’s] ‘again attitude’ constitute an material breach of his contract (‘repudiation’ in the wide sense), a breach that entitled the [CSIR] to cancel it. This issue was, in spite of the label of ‘repudiation’, properly raised by [the CSIR]

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • Appellate Division: “It is well established that the relationship between employer and employee is an essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the ‘innocent’ party to cancel the agreement…On that basis it appears to me that our law has to be the same as that of English Law and also that a reciprocal duty as suggested by counsel rests upon the employee…”

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • “[Fijen’s] emotional outburst was inappropriate, especially if one considers that he is a well – educated professional employed by a scientific, public and professional body” • “A value judgment must now be made, taking into account all the evidence and factors set out earlier. On balance I believe the dismissal was fair especially in the light of the seriousness of [Fijen’s] allegations against his employer. His fixed state of mind as expressed in his letters did not require of [the CSIR] to act in any other manner”

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • “Had the nature of the employment been different and the employee an unsophisticated labourer, the conclusion may have been different” • “I should point out that, although no hearing in the conventional sense of the work preceded the dismissal, it does not mean that the audi alteram partem rule was not complied with. This rule has no fixed content. [Fijen] stated his case twice…The [CSIR] had no factual version to put to [Fijen] there were no facts that [Fijen] had to meet. There were no allegations he had to answer”

Council for Scientific & Industrial Research v Fijen (1996) (2) SA 1 (A) • “His views, stated plainly, were known. All that was really left, was for the [CSIR] to value their import and to decide how to act or react.”

Incompatibility and the difficult employee • “Incompatibility can be a nebulous concept and the effect of incompatibility often cannot be explained and articulated in clear and objective terms” (Subrumuny and Amalgamated Beverages (2000) • employment contract may be terminated for incompatibility- valid ground for dismissal. • Labour Relations Act, 1995 (LRA) grounds for dismissal: misconduct, incapacity and operational requirements (s188 of the LRA)

Incompatibility: Spectrum • where does incompatibility stand or indeed fall? • ecosystem which is workplace includes wide variety in personalities, approaches and managerial styles • employer required to tolerate mild eccentricity or idiosyncrasies (difference) BUT cannot reasonably be required to tolerate ‘downright impossible’ or ‘unmanageable’ employees • workplace (in part) an enterprise in collective endeavour.

Incompatibility: Spectrum • not merely labeling or categorization, though this is not unimportant • appropriate (fair) categorisation - consequences for the way in which the difficult employee is dealt with • fairness: avoiding arbitrary decision making or unfair discrimination towards the difficult employee • incompatibility also described as an ‘inability on the part of the employee to work harmoniously with fellow workers or managers or that the employee does not fit with the corporate culture’

Incompatibility and the difficult employee • Different approaches • in some instances it is treated as a form of misconduct that is to be punished and rooted out. • Others: treated as a form of incapacity deserving of and requiring wise and patient counsel. • yet others: warrants termination on basis of operational requirements – difficult employees wreaking havoc

Where are the problem areas or difficulties? • When mild becomes extreme, then ‘credibility deficit’ arises • Joslin v Olivetti System & Networks Africa (Pty) Ltd(1993) employee walked around workplace carrying up to 36 pens in shirt pocket, on occasion a camera around his neck and wearing a cricket cap, at times he also used the photocopier to promote a certain political point of view. • a number of complaints (a stream and threatening to develop into a torrent) from fellow employees

Joslin v Olivetti System & Networks Africa (Pty) Ltd • some thought that he was making himself a figure of fun or objective ridicule, unkind words such as ‘lunatic’ were used to describe him • no concern with his work performance but rather that he was creating ‘a negative impression’ amongst co-employees • perceived to be ‘not in the best interests’ of the company

Joslin v Olivetti System & Networks Africa (Pty) Ltd • Industrial Court: employer had to distinguish between mild or harmless eccentricity and extreme forms of unacceptable conduct • extreme forms of unacceptable conduct would include: • arriving for work in a bathing costume or an outrageous outfit, • receiving clients whilst standing one’s head • turning cartwheels in the corridor

Joslin v Olivetti System & Networks Africa (Pty) Ltd • The reasoning of the Industrial Court was as follows: “Dismissal may be appropriate only where the employee’s eccentric behavior is of such a gross nature that it causes consternation and disruption in the workplace, and then only after he or she has been properly counseled or warned. A manager should not indulged in whimsical conduct which may impair the dignity of his office or cause the employer embarrassment…has to be sufficiently serious to warrant dismissal.”

Managerial Approach or Style • Wright v St Mary’s Hospital (1992) • some employees are thought to be impatient, undiplomatic, undermining of others, meddling and manipulative. • employer: dismissal was on operational requirements grounds as it was necessary to remove the employee from the workplace as her presence was undermining the proper and efficient administration or operation of the enterprise.

Lubke v Protective Packaging (Pty) Ltd (1994) • new employee or difficult existing employees • appointment of new managing director or other senior manager often changes workplace dynamics, new managers bring new ideas, a different vision • employer appointed a new managing director, new managing director made ‘sweeping reforms’ as part of his vision to reinvigorate the company • However, the way in which the changes were introduced and their tempo caused ‘annoyance’ amongst subordinate employees

Lubke v Protective Packaging (Pty) Ltd (1994) • subordinate employees were of the view that the new managing director sought to change the then existing corporate culture • naming and blaming followed in quick succession: managing director accused of ‘lacking interpersonal skills’, one employee resigned others threatened to follow suit • Interestingly, in proceedings before Industrial Court employer had high praise for the work of new managing director

Lubke v Protective Packaging (Pty) Ltd (1994) • The Industrial Court was not moved, reasoned that employees should have known that: • “It is a fact of life that new brooms do sweep clean. Senior personnel who fall under the supervision of a new executive appointee, such as a new managing director, should learn to live with and adapt themselves to changes and new work patterns, instead of crying foul play,

Lubke v Protective Packaging (Pty) Ltd (1994) simply because the bristles of the new broom happen to be hard and irksome. Where a managing director has been selected for appointment following exhaustive screening, then it is manifestly unfair to terminate the employment contract, after a short period of time, simply because some employees cannot come to terms with the new regime and show signs of rebellion.”

Lotter and SA Red Cross Society (2006) • What is not incompatibility? • Lotter appointed as provincial manager of the Society on a fixed-term contract (1 December 2005 to 31 December 2006) • reported to Secretary General and required to have ‘close working relationship’ with Provincial Council (a body of dedicated volunteers nominated to serve on the council and to oversee the work of the province) • Lotter circulated an ‘open letter’ containing disrespectful and disparaging remarks about the council, left a meeting before the conclusion meeting

What is not incompatibility? • relationship between Lotter and Provincial Council deteriorated and the Council voted unanimously to terminate Lotter’s services from 31 May 2006 • Lotter referred a dispute to the CCMA alleging unfair dismissal • Commissioner reasoned that given the narrow definition of a dismissal for operational requirements ‘it had become accepted that because incompatibility, in the absence of elements of misconduct, arose out of the subjective relationship between the employee and others in the organization, it was best dealt with as a form of incapacity’

What is not incompatibility? • Council did not have the right to take executive decisions relating to suspension or dismissal of staff but only to make recommendation • Society’s decision to terminate the employment relationship at behest of the Provincial Council “without pursuing the reasonable alternative of a mediated solution was misguided, premature and ill-informed” • dismissal was substantially unfair • relief compensation equivalent to balance of fixed-term contract.

What is not incapacity • Goddard v Metcash Trading Africa (Pty) Ltd (2010) • Goddard employed as divisional training manager until 31 May 2005, when retrenched - 15 years of service with the company • retrenchment process was concluded by him entering into a settlement agreement with the company on 15 February 2005 • Goddard referred alleged unfair dismissal dispute to Labour Court contending that he accepted company’s offer of retrenchment on basis of representations made to him that his position would be made redundant

What is not incapacity • company’s case: Goddard struggling to meet and maintain required performance standards, during performance counseling it became apparent that relationship between Goddard and his immediate superior was suffering due to fundamental differences in opinion regarding his role as training manager.

What is not incapacity • Court was satisfied that company’s conduct amounted to misrepresentation (company appointed replacement 2 months after dismissing Goddard), it concealed crucial facts about Goddard’s suitability or capability, Goddard lead to believe that his post was redundant whereas in fact this was not the case. Court could not make a finding that a ‘competency’ issue was in existence.

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • Over a period of time (between 1997 and 1999) conflict developed between Jardine and his immediate superior • Jardine’s behavior during that time was the subject of repeated counselling, review meetings and warnings • After retirement of Jardine’s superior Jardine’s new boss reported that his behavior remained unacceptable.

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • Examples of Jardine’s statement include the following: • “I am tired, sick & tired as the say of all the bull shit, subterfuge, buckpassing, petty squabbling, alleged miscommunication and at times down right bloody mindedness we are experiencing in the attainment of this relatively simple control measure which everyone down to the teaman Man must surely by now understand.”

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • “Enough is enough!! Pussyfooting around the problem, soft words, meetings after meetings are getting us nowhere. Sometimes the hammer must fall and it did today, at this mornings meeting.” • “Extraction needed their arse kicked for this, to my mind.” • “Red Herring…we must be aware of these Red Herrings swimming around in our streams! Shot-gun them out of the water!”

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • management: Jardine’s behavior was inappropriate, seriously undermined fellow managers and other employees • management also considered that Jardine had very inappropriately handled confidential issues in a very public manner • August 2001 Jardine filed a grievance against a general manager, Jardine was apparently aggrieved by a comment made by the general manager, grievance has found to be without substance

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • disciplinary enquiry convened and Jardine was dismissed for incompatibility • Jardine referred and alleged automatically unfair dismissal dispute, contend that his dismissal was unfair in that ‘outdated evidence’ was used to establish incompatibility • Jardine acknowledged that his behavior in the period 1997 – 1998 was inappropriate but claimed that he had corrected his mistakes

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • Jardine also contended that he believed that he could re-establish ‘business-like’ relationships with his colleagues • company’s view: pattern of incompatibility justified dismissal, Jardine has clearly and recalcitrantly indicated serious incompatibility, clear that it was Jardine who was the cause of the dissension and the incompatibility was either entirely or substantially attributable to him

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • The arbitrator’s analysis reasoning • Incompatibility as a ground for dismissal is not without difficulty • Section 188 of the LRA establishes 3 legitimate grounds for a fair dismissal: misconduct, incapacity and operational requirement. Each these requires a ‘distinct procedure’ before a fair dismissal can be effected.

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) ‘the [company] did not specifically categorize the grounds of the applicant’s dismissal, but the use of the disciplinary procedure to effect the dismissal indicates that the respondent opted to regard the conduct as misconduct. This was not the only option.’

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • The arbitrator observed the following guidance from cases and other authorities. • starting point: employer entitled to insist on reasonably harmonious interpersonal relationships within its business. • Just as the employer has an obligation not to destroy or damage the relationship of confidence and trust, so too there is an implied term that the employee must not act in any way which results in disharmony and a breakdown in the relationship

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • incompatibility has been defined as ‘inability on the part of an employee to work in harmony either within the ‘corporate culture’ of the business or with fellow employees’ • essence of incompatibility: an irremediable breakdown in the working relationship caused through personality differences, and inability to work together in harmony, friction between employees, a discordance in approaches and so on

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • assessing compatibility of managerial interaction necessarily involves the exercise of a subjective judgment • there must at least be some other evidence besides the opinion of the employer to establish incompatibility

Incompatibility – Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • golden rule is that prior to reaching a decision to dismiss, an employer must make some ‘sensible, practical and genuine efforts to effect an improvement in interpersonal relations when dealing with a manager who’s work is otherwise perfectly satisfactory’ • offending employee to be advised what conduct allegedly causes disharmony, who is upset by the conduct and what remedial action is suggested to remove the cause of the disharmony

Incompatibility –The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • odd or eccentric behavior of an employee, even if he or she happens to be a manager or a senior executive, cannot per se, give rise to a ground for dismissal

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • dismissal may be appropriate only where the employee’s eccentric behavior is of such a gross nature that it causes consternation and disruption in the workplace and then only after he or she has been properly counseled or warned • in order to justify dismissal, incompatibility must be entirely or substantially attributable to the employee • the incompatibility that causes the breakdown in a working relationship must be irremediable, dismissal is regarded as a last resort

Incompatibility – The Angry Scribe • Jardine & Tongaat Hulett Sugar Ltd (2002) • Arbitrator’s decision: the incompatibility in the period 1998 – 1999 had been resolved, that there was no counselling or warning for the incompatibility during the period 2000 – 2001 because there were elements of provocation for the applicant's insubordination, dismissal was an inappropriate sanction) awarded the applicant compensation in an amount equivalent to 6 months’ salary

Jabari v Telkom SA (Pty) Ltd (2006) (LC) • Jabari, a specialist investigator, employed by Telkom dismissed (31 August 2004) following an incompatibility enquiry • Chairperson of enquiry determined that ‘the employment relationship between [Jabari] and [Telkom] had irretrievably broken down as a result of [Jabari’s] incompatibility within [Telkom’s] ‘corporate culture’ • Jabari referred an alleged unfair dismissal dispute to the CCMA and following unsuccessful mediation matter referred to Labour Court

Jabari v Telkom SA (Pty) Ltd (2006) (LC) • Jabari contended dismissal was automatically unfair in terms of section 187 (1)(c ) and (d) of the LRA in that Telkom dismissed him for initiating grievance proceedings against it management and he was dismissed because he had rejected a voluntary severance packaged offered to him by Telkom • Jabari further contended that his dismissal infringed his right to fair labour practices (section 23 of the Constitution) and his right not to be subjected to discrimination for exercising a right under the LRA

Jabari v Telkom SA (Pty) Ltd (2006) (LC) • Telkom’s case against Jabari • Jabari sent threatening email to a colleague that created animosity, distorted and harmed trust relationship and was gross insubordination / incompatibility. • meeting was held on 8 April 2004 with the view to the severance of the ‘intolerable relationship’. • incompatibility enquiry was held as a result of Jabari’s incompatibility and failure to perform his duties and to perform within the structures of Telkom.

Jabari v Telkom SA (Pty) Ltd (2006) (LC) • Jabari’s dismissal was a consequence of an enquiry into his compatibility and does not fall within the ambit of section 187 of the LRA • Jabari continually challenges and questions decisions, does not take and execute instructions from his superior. • Jabari is “arrogant, insubordinate and uncooperative” • Jabari “habitually institutes grievance proceedings and does not prosecute these grievances to finality”

INCOMPATIBILITY AND THE DIFFICULT EMPLOYEE