Media Workers Association and others v Independent Newspapers (Pty) Ltd; Case Number: D426/2002 (Labour Court); Date of Award: 27 March 2002; www.caselaw.co.za

The age old debate surrounding the employer’s right to implement changes to existing terms and conditions of employment came before Pillay D, J in an urgent application brought by Media Workers Association of South Africa, South African Trade Union of Journalists and Chemical Energy Paper Printing Wood and Allied Workers Union.

The application, brought on behalf of journalists and editorial staff, sought to prevent the Independent Newspapers (Pty) Ltd from altering employee’s terms and conditions of employment. The newspaper argued that the need to change terms and conditions of employment was brought about by a need to restructure following a loss of profits. These changes related to grading, hours of work and career advancement.

With restructuring in mind the newspaper initiated a consultation process, commenced on 22 July 2002. During a series of workshops involving affected employees a new editorial structure was developed. The new structure was unveiled at the end of October 2001 at which time the Applicant trade unions became reluctant to continue participating in the consultation process. In retaliation the newspaper began consulting personally with individual employees affected by the restructuring. These consultations took place between November 2001 and February 2002.

The Applicant trade unions contended that by dealing personally with the employees the newspaper had undermined the principles of collective bargaining. Although Judge Pillay agreed that employers should consult with registered trade unions and not directly with their employee members she took the view that where trade unions refused to consult with the employer the employer had no alternative but to consult personally with the individual employees. The Court found that an application of Section 189 would often bring about changes to terms and conditions of employment. These changes are justified provided that they were made in the course of a bona fide retrenchment exercise and as an alternative to retrenchment.

Were changes to terms and conditions of employment (and possible dismissals) were a result of restructuring, a dispute arising out off these changes did not constitute a mutual interest dispute. By implication, aggrieved employees are precluded from embarking on protected strike action to challenge the changes affected by their employer to their terms and conditions of employment.

An additional consequence of the conclusion derived at by Pillay is that while an employer is ordinarily obliged to negotiate before implementing changes to term and conditions of employment or face the risk of strike action an employer implementing similar changes in the context of a section 189 restructuring exercise can effect these changes after only consulting with affected employees. Once this has been done the employees are precluded from striking.

Judge Pillay left open the question whether Sections 188 and 189 of the LRA dealing with unfair dismissals and dismissals based on operational requirements were subservient to the Section 187(1)(c).

Although Judge Pillay’s conclusion that changes to terms of employment can arise within the context of a restructuring exercise is based on sound reasoning the judge omitted to provide guidelines in this regard and has potentially provided employers with a loophole to prevent debilitating strike action by associating unilateral changes to condition of employment with section 189.

# DISMISSAL ON THE GROUNDS OF INCOMPATIBALITY

Test for incompatibility: "I never did give anybody hell. I just told the truth, and they thought it was hell." Harry S Truman (1884 - 1972)

Stephen Christopher Jardine and Tongaat Hulett Sugar LTD; Case Number: KN12659-01 (CCMA); Date of Award: 16 February 2002; www.caselaw.co.za

In this matter, an employee of middle-management rank was dismissed on grounds of incompatibility in that he lacked the capacity to be compatible with senior management and colleagues to the extent that his behaviour and approach was regarded as dysfunctional to the effective operation of the mill. It was further regarded that the employment relationship had become too strained and intolerable to continue further.

The applicant had amongst others, sent out various internal memoranda which displayed a distinct lack of social skills. He headed one Internal Memorandum "Commitment in writing demanded by the General Manager to prevent a recurrence of the effluent debacle." Another memorandum headed "Management: Hands Off!" recorded that he had appealed at a morning meeting that management refrain from tampering with machine settings or appurtenances unless there was a very good reason to do so, such as a dire emergency. In the same note he wrote "Let line management prevail! In the words of the great Gloria Gaynor: "Life ain’t worth a damn, If I can’t shout out: I am what I am!"

In another undated entry the Applicant wrote a 5,5 page reaction to criticism of his department headed THE "90 TONS BRIX PER HOUR" TANGO and recorded the following: "I am tired, ‘sick & tired’ as they say of all the bullshit, subterfuge, buck passing, petty squabbling, alleged miscommunication, and at times downright bloody mindedness we are experiencing in the attainment of this relatively simple control measure, which everyone down to the tea man must surely by now understand." Later he wrote: "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 morning’s meeting". Later he wrote: "Extraction needed their arse kicked for this, to my mind."

While on the facts of this case, the employee was deemed to have been unfairly dismissed; the Arbitrator clearly sets out the current legal position on dealing with employees who are incompatible.

Incompatibility as a ground for dismissal is not without difficulty (see Subrumuny and Amalgamated Beverages Ltd (2000) 21 ILJ 2780 (Arb) 2789D-G). Section 188 of the LRA establishes only three legitimate grounds for a fair dismissal: misconduct, incapacity and operational requirements. Each ground triggers a distinct procedure before a fair dismissal can be effected.

The Respondent did not specifically categorise 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. In Wright v St Mary’s Hospital (1992) 13 ILJ 987 (IC) dismissal for incompatibility was held to be a form of dismissal for operational requirements, although this judgment cannot now be followed in the light of the narrow definition of "operational requirements" in s 213 of the LRA 1995.

There was also the option to regard the alleged incompatibility as incapacity, requiring compliance with Section 8 and 9 of the Code of Good Practice: Dismissal (Schedule 8, LRA 1995). Le Roux and van Niekerk in The South African Law of Unfair Dismissal (1994) 285-6 appear to accept that incompatibility is a form of incapacity. Du Toit et al Labour Relations Law (3 ed 2000) 376-378 classify incompatibility as a form of incapacity because it relates wholly to the subjective relationship between the employee and others in the enterprise and bears no relation to the definition of operational requirements.

The categorisation of incompatibility as incapacity may not necessarily be a neat fit. Incapacity, in terms of the Code of Good Practice, concerns poor work performance and, despite knowledge of the performance standard, counselling, and time to improve, the inability or unwillingness to comply with the performance standard.

It may be inappropriate to regard compatibility, which is essentially an attitudinal problem, as poor work performance, particularly where the employee’s technical performance is highly competent. While it may validly be argued that compatibility is in itself a performance standard, particularly for a manager, the wilfulness inherent in incompatibility suggests that on occasions it should more appropriately be categorised as misconduct.

In this case it was not argued that the Applicant’s incompatibility constituted incapacity on his part to function properly in the technical sense. The Respondent argued that in this particular case, whether or not the employer sought to treat the Applicant’s conduct as misconduct or incapacity is neither here nor there and is merely of technical relevance. He argued that in essence, the Respondent has followed what is clearly a graduated and progressive approach as suggested in Schedule 8 of the Code of Good Practice by having counselling sessions, review meetings and giving the Applicant sufficient opportunity to improve.

What, then must an employer do to establish that a dismissal is justified on the basis of incompatibility? The following guidance is given from cases and other authorities:

The starting point is that an employer is entitled to insist on reasonably harmonious interpersonal relationships within its business (Erasmus v BB Bread Ltd (1987) 8 ILJ 537 (IC) 544C). 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 a way which results in disharmony and a breakdown in the relationship (Council of Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD) 691).

Incompatibility has been defined as ‘the inability on the part of an employee to work in harmony either within the "corporate culture" of the business or with fellow employees’. (Le Roux and van Niekerk in The South African Law of Unfair Dismissal (1994) 285-6)

The essence of incompatibility has been seen to be an irremediable breakdown in the working relationship caused through personality differences, an inability to work together in harmony, friction between employees, a discordance in approaches and so on (Lubke v Protective Packaging (Pty) Ltd (1994) 15 ILJ 422 (IC)).

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 Ltd (2000) 21 ILJ 2780 (Arb) 2789G-H).

Assessing compatibility of managerial interaction necessarily involves the exercise of a subjective judgment. For this reason there must at least be some other evidence besides the opinion of the employer to establish incompatibility. However, the formulation of compatibility must, for business and economic reasons, be left to the employer to decide. "It is not for a Court to second guess these decisions to decide upon the appropriate cause of action de nova. Nevertheless an Adjudicator should at least ensure that the employer’s standards are attainable.

Provided the employer acts in good faith and has reasonable and supportable grounds for concluding that the employment relationship cannot be continued, interference is unwarranted. In determining whether a dismissal is unfair one must be guided by the principal that reasonable people may differ as to what is appropriate under the circumstances". (Subrumuny and Amalgamated Beverages Ltd (2000) 21 ILJ 2780 (Arb) 2789G- 2790A).

The 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 whose work is otherwise perfectly satisfactory" (Lubke v Protective Packaging (Pty) Ltd (1994) 15 ILJ 422 (IC) 429D-E; Hapwood v Spanjaard Ltd [1996] 2 BLLR 187 (IC) 196-7). The offending employee has 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. A reasonable period must be allowed for the employee to make amends.

Odd or eccentric behaviour 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. Mild or harmless eccentricity should of course be distinguished from extreme forms of unacceptable behaviour.

Dismissal may be appropriate only where the employee’s eccentric behaviour is of such a gross nature that it causes consternation and disruption in the work-place, and then only after he or she has been properly counselled or warned (Joslin v Olivetti Systems & Networks Africa (Pty) Ltd (1993) 14 ILJ 227 (IC) 230 F-J).

In order to justify dismissal, incompatibility must be entirely or substantially attributable to the employee. (McDuling and MIF (1998) 7. CCMA 8.3.1; Visagie & Andere v Prestige Skoonmaakdienste (EDMS) Beperk (1995) 16 ILJ 421).

The incompatibility that causes the breakdown in a working relationship must be irremediable (Wright v St Mary’s Hospital (1992) 13 ILJ 987 (IC) 1004A). Dismissal is regarded as a last resort (Hapwood v Spanjaard Ltd [1996] 2 BLLR 187 (IC) 198C-D).

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