March 2006

Can employees be dismissed for incompatibility?

Sometimes, in a workplace, there is an employee who simply does not get on with their colleagues or their managers. That incompatibility may be simply an annoyance or in some cases, it can affect the ability of the workforce around them to perform their roles. Can you dismiss somebody because they simply do not get on with the other staff? In recent years, the Employment Relations Authority, the Employment Court and the Court of Appeal have all given consideration to this question.

In one case, the Employment Court and subsequently the Court of Appeal, considered the case of a public employee who was dismissed for incompatibility. The employer alleged that the employee had threatened a fellow staff member, had refused to attend at counselling to discuss the issues of conflict and, in response to his Manager raising the issue of conflict had then instituted legal proceedings against the Manager alleging that he was biased, unlawful and had defamed the employee. The employee subsequently refused to accept the authority of his superiors, alleged incompetence against his superiors, challenged or disobeyed directions given to him, and continued to threaten legal action when challenged by his Manager. Eventually, the employer decided to terminate the employee’s employment on the basis that the amount of conflict between the employee, the employee’s colleagues and managers was incompatible with the employee’s continued employment. The employer further justified dismissal on the basis that they had attempted to resolve the conflict but this had been frustrated by the employee’s actions.

The Court of Appeal held that the dismissal was justifiable. It found that the employer had investigated the matter thoroughly, had offered counselling as a way of removing the conflict, and had conveyed its concerns to the employee and given the employee an opportunity to respond.

In a later decision of the Employment Court, an employee brought a personal grievance as her employment had been terminated on a number of grounds, including incompatibility. In that case, the employee had been told that a fellow employee had made a complaint against her after seven years of working together. The complaint was that she made repeated and persistent derogatory comments against her fellow employees. It was alleged that these comments were made in an attempt to change the complainant’s attitude about her co-workers. Following a Mediation, it was agreed that the employee’s employment would continue and that any further conflict would be raised with the Manager in an objective and courteous way. However conflict continued in the workplace, largely between the employee and her manager, in that she felt that her position was being undermined. Other employees reported to management that they felt that she created an air of tension, that she was false in her manner, that she made life hell for everyone and would throw tantrums. Another described that it was like walking on eggshells to be around her. However none of the employees could give specific examples of behaviour that made them feel this way. Following a disciplinary process, the employer dismissed the employee for a number of grounds, one of which was incompatibility.

The Judge accepted that there was incompatibility. However, the Judge found that the employer was itself substantially the cause of the breakdown and incompatibility. The Court found that the employer had not brought the matters of conflict to the employee’s attention in a timely manner and had not endeavoured to resolve them. Neither was any warning given to the employee that if her attitude was not changed, it could lead to a finding of serious misconduct. The Court found that the onus was upon management to try and resolve the matters of incompatibility and then only if the employee had failed to cooperate, could there have been a justified finding that the employment relationship had irretrievably broken down.

In these cases, the following conclusions can be drawn:-

1. It is an unusual and rare case in which an employer may justify dismissal because of incompatibility. That incompatibility must have led to an irreconcilable breakdown of trust and confidence in the employment relationship.

2. The employee must be substantially responsible for the irreconcilable breakdown. An employer cannot justify dismissal on this basis if the employer has been substantially the cause of the breakdown.

3. As in any disciplinary process, the employer must warn the employee of the consequences if the behaviour is not modified.

4. Likewise, as in all disciplinary matters, a procedurally fair process must be followed and the dismissal must be substantively justifiable.

5. The onus is upon the employer to show that the necessary level of incompatibility existed.

In conclusion, it is clear that while it is possible to dismiss an employee for incompatibility, warning should be paid to the Employment Court’s and Court of Appeal’s findings that incompatibility will only exist in “an unusual and rare case”.