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’.  This concept is discussed in detail in

It is noted in the first book that the “UK Employment Rights Act 1996, in addition to the stipulated grounds on which dismissal may fairly take place, also recognises ‘some other substantial reason of a kind such as to justify the dismissal’: s 98(2)(b).

In South Africa, by contrast, the right not to be unfairly dismissed is derived from the basic right to fair labour practices [s 23, Constitution], and any limitation of a basic right must be strictly construed (ie, restricted to the permissible grounds for dismissal as stated in the Act): see ch XI para 2.5(b)”.

Third party demands

There are situations unrelated to the employer’s operational requirements and not containing any element of (mis)conduct where employees may not be able to perform their functions properly and where employers may terminate employment failry, provided it is done lawfully.  Footnote 373 refers to the legitimate demands of third parties making it practically impossible to retain an employee’s services and may create a situation of this nature: see

  • Amalgamated Beverage Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC);
  • SA Quilt Manufacturers (Pty) Ltd v Radebe (1994) 15 ILJ 115 (LAC);
  • East Rand Proprietary Mines Ltd v UPUSA [1997] 1 BLLR 10 (LAC);
  • Lebowa Platinum Mines Ltd v Hill [1998] 7 BLLR 666 (LAC);
  • Govender v Mondi Kraft – Richards Bay [1999] 12 BLLR 1279 (LC);
  • Mnguni v Imperial Truck Systems (Pty) Ltd (2002) 23 ILJ 492 (LC).

Operational requirements

Section 213 of the LRA defines the term ‘operational requirements’ to mean ‘requirements based on the economic, technological, structural or similar needs of an employer’.  See Similar needs: Operational requirements and fair dismissals.

In Apollo Tyres SA (Pty) Ltd v NUMSA [2012] 6 BLLR 544 (LC) at 406 where ‘operational requirements’ was referred to as a ‘term of art’.  Where dismissal could be related to, or based on, more than one legal ground, it is submitted, the focus should be on the actual or predominant reason for dismissal.  But even though there may be a valid ana fair reason to terminate employment the employer will breach the contract unless reasonable notice of termination is given and that will depedn on the cirsumstances of each case.

In Goldfields Logistics (Pty) Ltd v Smith [2010] ZALAC 33 (24 August 2010) at para 32 the Labour Appeal Court stated :

‘there would be instances where a legitimate operational requirement exists, which would justify a dismissal on operational requirement and also a fair reason on the basis of which an employer may discipline the employee for misconduct which would lead to a dismissal. . . . It should be permissible for the employer to opt for the use of operational requirement provided that it is not for improper motive and that the requirements of section 189 of the Act are met.’

See Operational requirements: choice when misconduct related.

“It has been argued that the appropriate criterion for establishing the fairness of dismissal related to incompatibility is ‘the failure or inability [of the employee concerned] to maintain the standard of relationship with peers, subordinates and superiors set by the employer’ and that, in the absence of bad faith, these standards should not be open to legal challenge”.  See Paul Pretorius ‘Executive Dismissal for Incompetence and Incompatibility’ (1993) 2:8 Labour Law News and Court Reports 2.