Q: We hired a new employee but it's just not working out. Can I dismiss someone for incompatibility?
A: Philip Kotze from AdviseWise People replies:
Yes, you can dismiss an employee for being incompatible with the company but it requires an open, honest and fair investigation of all facets of the
employment relationship.
The Employment Authority and the Employment Court have accepted that in some instances - where there is an irreconcilable or unharmonious working relationship - dismissal is the most appropriate course of action.
Incompatibility includes not getting on with the staff or management, or just not fitting in. The employee is usually the first to admit incompatibility.
Whatever the case you must still be able to show what the alleged incompatibility is, that it is serious and ongoing, that the employee causes the incompatibility and that there are no reasonable options other than dismissal.
In most cases, you must have made a real attempt to remedy the incompatibility.
In order to be procedurally fair, an employee should be given an opportunity to explain their side of the story. They should be given time to improve, helped to address the problem by being sent on appropriate training courses, for example, and warned that their continued conduct would lead to their dismissal.
There is a high risk that unless you are extremely thorough with the process, you will face a personal grievance claim and we recommend that you take advice before seeking to dismiss for incompatibility.
The more rigorously the process is followed, however, the smaller the risk. So you have to decide which is greater - the cost of the incompatibility, or the risk?
While you probably cannot do much about the former, expert advice will help you reduce the risk of a successful grievance to the extent that it does not make sense to continue with the unproductive stalemate.
* Philip Kotze is chief executive of AdviseWise People, an employment law and employment management firm working with small to medium businesses.
Ph: 0800 692-384; AdviceWise
* Send Mentor questions to: ellen_read@nzherald.co.nz. Answers will be provided by Business in the Community's Business Mentor Programme.
