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Incompatibility - Grounds For Dismissal

Published 12 Nov 2012

The Employment Court has ruled that a dismissal based on 'incompatibility' as justification was justified in view of the (quote) 'confrontational and belittling' behaviour of the Employee. (Walker Vs ProCare Health Ltd)

Beware, because the other part to any dismissal is correct procedure - so this case does not automatically become a springboard for Employers to safely dismiss the argumentative, abrasive, defensive, uncooperative, irrational Employee who suffers from chronic entitleitis who is the most unpopular person at work.

However, the ruling is based on the irrational and uncompromising behaviour of the Employee leading to the Employer losing all trust and confidence in the Employee. It is a decision that Employers will welcome.

Getting rid of an incompatible Employee is, however, still onerous and the test to determine whether the dismissal was justified or not still lies in s1O3A of the Employment Relations Act "whether the Employer's actions and how it acted were what a fair and reasonable Employer could have done in all the circumstances at the time."

So - what should Employers do in such circumstances?

Employers will need to bear in mind the onus of proof lies with the Employer. To justify a dismissal based on 'incompatibility' the Employer needs to be in a position where it is able to prove that there was a breakdown in the employment relationship that cannot be recovered and the breakdown itself - is attributable mostly (or wholly) to the Employee's behaviour. And Employers need to be able to prove they used a fair and reasonable process before reaching that conclusion. Some useful steps could be:

1.        Address the concerns with the Employee (you need to take notes, and it may be best if there is a witness present) and try to establish what might be causing the Employee to act in this way.  (if this is a formal investigation process and you conclude at the end of the process that misconduct has occurred, you could issue a formal warning);

2.        You could offer the Employee assistance and training to avoid/minimise any workplace stress/pressures if appropriate. Common stressors such as shift-work or disturbed sleep caused by crying babies etc may be impacting on the Employee and workplace relationships and you may be able to offer some assistance;

3.        You could offer counselling with a psychologist - maybe a workplace psychologist;

4.       You could  offer mediation (private or the Ministry of Business Innovation and Employment);

5.       Consider methods of improving the communication within the team -  team building assistance/coaching to try to resolve all disharmony;

6.       And of course, investigate fully  (and formally)  before making any decision to dismiss.        

By following the above steps, Employers are then in a better position to prove they have acted fairly.


If you are not members, please consider joining us or buy our Discipline & Dismissal eBook to ensure you get it right. Members of the Employers Support Package have access to this product, which is in the Library section of the Employers Toolbox.