| Nature |
Incapacity issue – employee unable to maintain harmonious workplace relationships. |
Disciplinary issue – employee wilfully breaches rules, instructions, or standards of conduct. |
| Cause |
– Personality conflicts- Management style- Inability to integrate into culture- Loss of trust/confidence not based on specific acts |
– Insolence, insubordination, rudeness- Dishonesty, absenteeism, negligence- Specific breaches of workplace rules/policies |
| Legal Classification |
A species of incapacity (affects performance/relationships). |
Misconduct under disciplinary code (fault-based). |
| Employer’s Duty |
– Inform employee of disharmony- Investigate whether employee is responsible- Propose remedial action (e.g. mediation, coaching)- Explore alternatives before dismissal |
– ‘Charge’ employee formally under disciplinary code– Prove misconduct occurred on a balance of probabilities– Follow progressive discipline unless gross misconduct |
| Proof Required |
– Employee is primary cause of disharmony- Disharmony is serious and impacts operations- Independent corroborative evidence (not just one manager’s opinion)- Assistance/remedial measures failed |
– Evidence of specific acts of misconduct- Show intent, fault, or negligence- No need to prove “disharmony” – only the rule breach |
| Process |
Incapacity procedure (similar to ill-health/poor performance):1. Identify issue2. Engage employee3. Offer support/assistance4. Assess improvement5. Only dismiss if irreconcilable |
Disciplinary procedure:1. Draft averments2. Allow right to be heard3. Employee can respond4. Consequence (warning, dismissal) |
| Dismissal Test |
Substantively fair if:- Employee caused serious disharmony- Relationship irreparable despite interventions- Dismissal = last resort |
Substantively fair if:- Rule existed- Employee broke rule- Rule was reasonable- Sanction appropriate |
| Examples |
– Employee consistently unable to work with team despite mediation- Personality clashes disrupting unit productivity |
– Employee refuses lawful instruction (insubordination)- Employee insults manager (insolence)- Theft, dishonesty, absenteeism |
| Key Case Law |
– Jabari v Telkom (incompatibility = incapacity)- Mgijima (causes: personality, style, culture)- Van Dyk (LAC: incapacity, not operational requirement) |
– Sidumo v Rustenburg Platinum Mines (fairness test for misconduct dismissal)- Woolworths v CCMA (progressive discipline)- Numerous cases on insolence/insubordination |
| Practical Tip |
Don’t use incompatibility to mask misconduct – ensure proper classification. |
Don’t inflate misconduct into incompatibility unless disharmony is broad, entrenched, and beyond single incidents. |
