It is generally well known that you must have a good reason to dismiss an employee under New Zealand law.
The sorts of good reasons you may be familiar with include:
- that the employee’s position is redundant;
- that the employee has misbehaved; or
- that the employee’s performance is not up to scratch.
But there are other, lesser-known reasons that can justify a dismissal.
One of those is that you can dismiss an employee if they are incompatible with your workplace.
What on earth does that mean?
WHAT IS INCOMPATIBILITY?
An employee is incompatible with the workplace if:
- There is significant, ongoing disharmony in the workplace;
- The employee is the major cause of that disharmony; and
- The employee has failed to change their behaviour.
In short, you can dismiss employees who foster disharmony and refuse to change their ways.
But before you head off to fire that troublesome employee, think about what you need to prove.
For one, proving that an employee is the main cause of an unharmonious workplace can be difficult. There may be more than one contributor. Can you really pinpoint one employee as being at fault?
Even if you can identify them as the primary cause, you have to give them a chance to change their ways. The process to address this behaviour is like the process to address poor performance. That is, you must give the employee a sense that their behaviour is an issue, and allow a chance for them to improve.
As with a poor performance process, you must support the employee and help them to change their ways. You can’t just tell them to change their ways and leave them high and dry, only to jump on them when they fail.
Of course, if they do change their ways, you can’t continue to peg the blame on them. This would no longer give you grounds to dismiss.
AN EXAMPLE OF INCOMPATIBILITY
Incompatibility can be hard to describe. It’s often not one act, but a series of behaviours over time. It’s more a case of “you’ll know it when you see it”.
A 2012 Employment Court case gives an example of an employer justifiably dismissing an employee for incompatibility.
In that case the employee, a company accountant, created serious difficulties in the workplace. She would do things like:
- be aggressive or demeaning to others in emails;
- write emails to others in red and with exclamation marks;
- belittle other staff; and
- obstruct a company audit.
The employer took various steps to address the behaviour that was causing trouble. They engaged a senior HR manager, arranged mediation, and met with her to request changes to her behaviour. But she was increasingly defiant.
The employer dismissed her. The Employment Court held that it was fair to do so in those circumstances.
Dismissal for incompatibility is rare. It is unlikely that such troublesome employees are uncommon. Rather, it may be because these grounds to dismiss are not well known.
It may also reflect that attempts to define incompatibility are risky. Employers may choose to stick with what they know. They may choose to characterise the employee’s behaviour as poor performance or misconduct. That way, they take a more familiar course to deal with the issue.
Nevertheless, incompatibility is a real problem that can result in an employee’s dismissal. It is one more good reason to dismiss.
Were you aware that incompatibility presented you with grounds for dismissal?