Terminating for incompatibility

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While many employee behavioural issues can be dealt with through the traditional management processes, there are some situations that aren’t easily remedied.

If you have an employee who is making the workplace dysfunctional, you may be able to dismiss them on the grounds of incompatibility.

Laura Scampion, special counsel at DLA Phillips Fox, said that incompatibility could be an option in certain circumstances, where employers had exhausted other avenues in trying to fix the situation.

While the New Zealand courts recognise that serious personality clashes or ongoing disharmony resulting in dysfunctionality in a workplace is unsustainable, employers still need to follow proper procedures before they can dismiss the employee in question.

For incompatibility to be an option, an organisation has to show severe, ongoing disharmony and be able to prove that the employee is largely to blame for it.

Scampion said that two incompatibility cases from 2012 showed the measures employers had gone to before dismissing the employees.

In one case, the company engaged a director of people and culture to improve the negative workplace culture, before getting in a mediator and commissioning an independent report of where the problems lay.  

“They clearly went to huge expense to try to remedy the situation and get to the bottom of the workplace friction. They really jumped through all these hoops to try to sort it out and then at the end of all that, with little result, they had little choice but to go through a dismissal process,” said Scampion.

That process involves best practice procedures like setting out in writing what the allegations are against the employee, giving that letter to the employee, having them to a meeting with a representative, giving them the chance to respond and then making a decision.

In the second case, the employee's activities as a public figure outside of his full time employment were incompatible with his job.

The employee was seen as being at fault because he chose to continue his out of work activities.  

Scampion said that incompatibility cases could be tricky for employers to win.

“It's not something I'd recommend to all employers as soon as there's a bit of friction in the office but if things have gotten really bad, it's definitely an option to look at.

“I would say that over the past year, discussions with our clients about incompatibility dismissals and what the principals are have significantly increased. It might be that we say we don’t think it is an option in this case, it might just be a staff member with a bad attitude.”

Scampion said that issues like attitude could often be dealt with as misconduct as and when each incidents arose.
“With attitude, you can pick it up along the way. With incompatibility, it's almost the end of the road with an employee who you haven’t dealt with through those normal processes or a situation you can't deal with through normal processes.”


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