By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
Employees who lodge grievances are too often victimized for exercising their rights. Such victimization often takes the form of dismissals for incompatibility.
In the landmark case of Jabari vs Telkom SA (Pty) Ltd (2006, 10 BLLR 924) the Labour Court, in explaining the nature of workplace incompatibility, highlighted three important characteristics of incompatibility. It said that:
- Incompatibility refers to the employee’s “inability or failure to maintain cordial and harmonious relationships with his peers”
- Incompatibility is a form of “incapacity”
- Incompatibility is an “amorphous, nebulous concept, based on subjective value judgments”.
The above makes it clear that incompatibility itself is not misconduct. It is rather a form of incapacity in the sense that the incompatibility renders the employee unable to do his/her work properly or hinders the work performance of the team.
A major problem for employers is that, while the employer has the onus of proving that it is the employee who is the cause of the disharmony, providing such proof is often difficult.
In addition, the employer has the onus of proving that:
- There really was incompatibility
- It resulted in serious consequences for the employer
- The employer had tried to implement remedial measures
- The employee was given the chance to defend his case and to correct his/her behaviour.
In the case of Department of Science and Innovation vs Mokoena (Lex Info 3 September 2025. Labour Court case number JR 694/22) the employee was fired for several acts of misconduct as well as for incompatibility. The incompatibility charge was itself based on the allegation that the employee had refused to obey her superior.
As the arbitrator found in favour of the employee, the employer took the matter to the Labour Court on review. The Court reiterated the fact that incompatibility itself is not misconduct but is rather a form of incapacity. And the Court could not fault the arbitrator’s finding that the employer had failed to prove incompatibility.
It appears further that the Court believed that the employer had confused insubordination, which is misconduct, with incompatibility which is not misconduct. The Court therefore found that the arbitrator had been correct in finding that the employee had not been incompatible with the employer. This, together with the employer’s inability to prove the other charges, resulted in it losing the case and having to pay the employee’s legal costs, which included the fees of three lawyers.
The outcome of this case shows that even well-established employers are not aware of the major difference between insubordination and incompatibility. And it reinforces the need for all employers to ensure that its decision makers fully understand such basic legal principles.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
