Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases
Authors: Chuks Okpaluba and Tumo Charles Maloka
Affiliations: Research Fellow, Centre for Human Rights, University of the Free State; Associate Professor, Department of Mercantile and Labour Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 238 – 259
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  ZALAC 4; Mgijima v MEC, Department of Education, Gauteng  ZALCJHB 414; Edcon Ltd v Padayachee  ZALCJHB 307 and Watson v South African Rugby Union (SARU)  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 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.