There is a great line in the stage show “Hamilton” – it is “Talk less, smile more!”
This is undoubtedly sage advice in various contexts, including in the workplace. It is surprising how many employment relationships are irreparably damaged as a result of one employee freely expressing their personal views about other people or espousing opinions on non-work related topics. Relationships can also be destroyed by an employee dominating work related conversations and generally thinking that their views are more important than anyone else’s.
Work colleagues can be quite intolerant of people they perceive to be too opinionated or loud. In this regard people tend to be more accommodating and forgiving of friends and whanau but can quite quickly form negative views of co-workers who they deem to be offensive in some way. When this occurs, it can result in fractured workplace relationships, which then affects the whole team dynamic. At its most extreme the “offending” employee can be frozen out and ostracised.
Situations such as this are extremely difficult for employers to manage because generally an employee cannot be fired just because their colleagues do not like or get on with them. Nor can an employee be dismissed for simply expressing personal, and potentially unwelcome views, unless this crosses the line into conduct which amounts to harassment, discrimination, or which is seriously offensive and unacceptable.
In these cases there is often insufficient justification for terminating an employee’s employment on the basis of poor performance or misconduct, yet dysfunctional workplace relationships can be equally problematic for an employer, ultimately impacting on workplace productivity and culture.
The legal position is that an employer can potentially dismiss an employee for “incompatibility”, however the threshold for establishing this is very high. It requires more than mere dislike of a co-worker, and proof of sustained conflict or disharmony. In one old case the Employment Tribunal said that there is no law that employees have to like each other. It helps a lot if they do, but there at least needs to be an appropriate professional relationship.
Dismissal for incompatibility must be a last resort. Prior to reaching this point an employer will need to show that they have taken all reasonably practicable steps to resolve any conflict that exists, including individual and/or team counselling and mediation. The employee concerned would also need to have been put on notice of the potential consequences of any continued poor behaviour and the failure to rebuild relationships.
An employer is also required to establish that the breakdown in relationships is attributable wholly or substantially to the employee concerned. This can be difficult to establish as there is often fault on both sides.
In a recent case Bhana v Jarden Partners Limited, Usha Bhana was dismissed for incompatibility after just two years in the job. Bhana claimed that she was not accepted as a member of the team and was excluded from things such as the daily office morning tea. She felt that colleagues were sniggering behind her back and her team members complained that she continued to make mistakes.
Bhana also had concerns about her manager and workload, and raised these concerns with her manager but felt nothing came of this so escalated the matter to Human Resources. As it happened, her manager had also raised their own concerns with Human Resources about her.
As a result of the interpersonal conflict that had arisen within her own team, Bhana was moved to a different part of the business, however she claimed that there was no consultation and she would not have moved if she had known this was permanent. Relationships then further deteriorated after a performance improvement plan was introduced and the company raised an allegation of serious misconduct. Bhana was ultimately dismissed for incompatibility.
The Authority considered the test for incompatibility and held that an irreconcilable relationship breakdown could not be established as all other options had not been explored or exhausted up until that point. Further, the employer was unable to demonstrate that the incompatibility was wholly or substantially attributable to Bhana. The dismissal was held to be unjustified and Bhana was awarded a total of $55 000 as compensation for humiliation and distress, together with lost wages of nearly $14 000.
This case reflects how difficult it is for an employer to justify dismissal on this basis, and the substantial remedies that can be awarded to employees in this context.
Most people do not set out to deliberately upset their colleagues or to act in an offensive manner. Nor do people generally like conflict and strained relationships. But it is true that people have different styles and personalities, and people do not always gel. The irony is, though, that in judging people they perceive to be difficult, and at its most extreme refusing to cooperatively work with them, people demonstrate similar behaviours to those that they claim to find offensive.
Greater tolerance and understanding of other people’s differences, and a bit more of the “Talk less, smile more”, may avoid situations arising where workplace relationships breakdown and an employer has to consider termination for incompatibility.
This article was originally published on thepost.co.nz 14 June 2023
