New case deals with a South African worker who was fired for ‘complaining too much’ – what you should know

South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA) recently dealt with the dismissal of an employee who continuously raised grievances at work, notes Jacques van Wyk, director at Werksmans Attorneys, who highlights the commission’s findings.

The case centred on the alleged unfair dismissal for reasons of ‘incompatibility’.

The employee lodged ‘endless complaints’ and continuously displayed aggression to his immediate superiors. The employee claimed that his complaints arose from disagreement with his poor work performance rating by the employer.

“The employee had indicated that he had financial problems and familial problems which affected his mental focus and concentration at work due to stress. He was assisted through the process of the Independent Counselling and Advisory Services (ICAS) and it was established that he was fit to perform his work,” said van Wyk.

“The employer assisted the employee who later continuously rejected advice and persistently raised issues that had previously been dealt with. The CCMA commissioner noted that the evidence showed that the employer went out of their way to assist the applicant. Despite the efforts of the employer, poor work performance persisted which had resulted in the low-performance rating afforded to the employee.”

Thereafter, the commissioner noted that the employee had continued to file grievances after a successful conciliation meeting in which he had agreed to “bury old wounds”. Ultimately, the relationship between the employee, his co-workers and superiors grew toxic. The employee continued to fail to follow instructions and displayed aggression.

“Incompatibility had been incorporated in the employer’s disciplinary policy as a form of misconduct,” said van Wyk.

“The employee denied that he was aware of the provisions in the employer’s disciplinary code making incompatibility a disciplinary offence. This was rebutted by evidence provided by the employer which had been affirmed by the commissioner”.

CCMA’s findings

The CCMA commissioner relied on the case of Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC), in which the Labour Court highlighted important characteristics in explaining the nature of workplace 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 and incompatibility is an “amorphous nebulous concept” based on subjective value judgments”.

The commissioner found that the employee had disrupted the harmony of the workplace, warranting dismissal. He had been counselled but had refused to co-operate with remedial measures or to sign minutes.

The termination of his employment was the last resort since the employer had invested a lot of time to consider his grievances which were unfounded and baseless.

“The notion of incompatibility is nebulous but, when proven, can serve as a valid basis for dismissal. An example of this is when an employee lodges continuous grievances which are unfounded or have been resolved on a previous occasion which disrupt the harmony in the workplace,” said van Wyk.

Read: 10 job skills that are needed in South Africa right now: minister

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