Incompatibility as a ground for dismissal in Contemporary South African Law of Unfair Dismissal: A review of Zeda Car Leasing and other recent cases

• Author: Okpaluba, C.
• DOI: https://doi.org/10.47348/SAMLJ/v33/i2a4
• Published date: 13 January 2022
• Date: 13 January 2022
• Citation: (2021) 33 SA Merc LJ 238
• Pages: 238-259

INCOMPATIBILITY AS A GROUND FOR

DISMISSAL IN CONTEMPORARY SOUTH

AFRICAN LAW OF UNFAIR DISMISSAL:

A REVIEW OF ZEDA CAR LEASING AND

OTHER RECENT CASES

CHUKS OKPALUBA*

Research Fellow, Centre for Human Rights, University of the Free State

TUMO CHARLES MALOKA*

Associate Professor, Department of Mercantile and Labour Law,

University of Limpopo

Abstract

Although incompatibility is not listed along with incapacity,

misconduct, or operational requirements in s 188(1)(a) of the Labour

Relations Act 66 of 1995 as a ground for dismissal, in practice, it has

been likened to all these statutorily laid down grounds to justify

dismissal and abundant case law abound to bear witness to this

assertion. A cursory reading of the cases of Zeda Car Leasing (Pty) Ltd

t/a Avis Fleet v Van Dyk [2020] ZALAC 4; Mgijima v MEC,

Department of Education, Gauteng [2014] ZALCJHB 414; Edcon Ltd

v Padayachee [2018] ZALCJHB 307 and Watson v South African

Rugby Union (SARU) [2017] ZALCJHB 264 where incompatibility

was approached respectively, from the prism of operational

requirements; incapacity and misconduct; coupled with some recent

cases discussed herein, clearly indicate that incompatibility has not

only covered the field, it has also acquired a pride of place in

contemporary South African law of unfair dismissal. Given these

circumstances, the authors recommend the insertion into s 188(1)(a)(i)

by way of an amendment such that the subsection will include a fair

reason ‘related to the employee’s conduct, incapacity or

‘‘incompatibility’’’. This will definitely clear any lingering doubts

*LLB LLM (London) PhD (West Indies).

** BA LLB LLM (UCT) LLD (UFH). Our gratitude goes to the reviewers for careful

reading, thoughtful feedback, and editorial suggestions. The usual disclaimer applies.

238

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(2021) 33 SA Merc LJ 238

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surrounding the role of incompatibility and empower the arbitrator

and the Labour Court to adjudicate with a level of clarity in the law of

unfair dismissal.

Keywords: incompatibility; misconduct; incapacity; operational require-

ments; grounds of dismissal, unfair dismissal

IINTRODUCTION

‘Incompatibility’, in simple English means, as Thesaurus indicates, a lot

of things, including ‘mismatch, inconsistency, irreconcilability, incon-

gruity, inappropriateness, unsuitability and discordancy’.

1

It is a word

often used in personal relationships such as between husband and wife

or between two friends and, perhaps, in a typical master and servant

relationship of the old order where the employer is present at the

workplace with the employee,

2

or in modern times, between a manager

and an employee under his or her supervision. Bringing it nearer home,

Black’s Law Dictionary

3

def‌ines ‘incapacity’ as incapable of exercising

together. Black links incompatibility to the law of divorce in which case

it refers ‘to such deep and irreconcilable conf‌lict of personalities or

temperaments of parties as makes it impossible for them to continue

normal marital relationship. Such conf‌lict of personalities and disposi-

tions must be so deep as to be irreconcilable and irremediable’.

4

Although this article does not deal with the law of divorce, however,

aspects of the def‌inition of incompatibility proffered by Black coincide

with those encountered in the development of that concept in the

modern law of unfair dismissal in employment. Be that as it may, the

question that remains to be answered in the present context is: what role

does incompatibility play in the law of unfair dismissal? Put directly, can

an employer dismiss an employee for incompatibility? If so, is the

relevant ground misconduct, incapacity or operational requirements?

Or, is incompatibility a stand-alone fair reason for dismissal, and, if so,

where does it derive its source or origin? This point arises because

incompatibility is not mentioned in s 187 of the Labour Relations Act 66

1

Roger’s 21 Century Thesaurus 3 ed (Philip Lief Group 2013) available at https://

www.thesaurus.com/browse/incompatibility, accessed 09 November 2021.

2

Davies & Freedland, ‘The complexities of the employing enterprise’ in Davidov & Langile

(eds), Boundaries and Frontiers of Labour Law (Hart Publishing 2006) 274; Collins, ‘Contrac-

tual autonomy’ in Bogg et al (eds), The Autonomy of Labour Law (Bloomsbury 2015)

45 and 67.

3

Black, Black’s Law Dictionary 6 ed (St. Paul, Minn. West Publishing Co. 1990) 765.

4

Citing Berry v Berry 215 Kan. 47, 523 P2d 342 at 345.

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