While 2020 may be a year that many of us would rather leave behind, for some workplaces, the ghosts of workplace issues from 2020 dragging on into 2021, are all too real. Incompatibility amongst employees is arguably one of the most exhausting, long-running employment problems any employer (and their lawyer) will have the misfortune to deal with.
A dismissal for incompatibility is also one of the most difficult dismissals to defend.
In a June 2020 Authority determination, Neil v New Zealand Nurses Organisation, the employer successfully defended the dismissal of two employees for incompatibility. The determination highlights the thoughts of many employment lawyers, that the threshold to justify dismissal in such cases is too high for most employers. This is particularly so for small employers, where the damage wrought by ongoing incompatibility on productivity and the health and wellbeing of other employees, is effectively amplified in a smaller workforce.
Angela Neil and Tina West were employed by the New Zealand Nurses Organisation (‘NZNO’). Ms Neil was an organiser for 12 years, initially in the Hamilton office, but relocated to the Tauranga office in 2012. Ms West was an administrator who worked in the Hamilton office from 2004 and then transferred to the Tauranga office in 2016.
Relationships became strained between Mss Neil and West on one side, and three other employees on the other. Matters came to a head in April 2018 following two incidents, which resulted in complaints and counter-complaints amongst the five employees. An inquiry commenced into the complaints in May 2018 with a report on matters being completed in June 2018. The report, drafted by NZNO’s assistant industrial services manager, Glenda Alexander, referred to “a culture of complaints and counter-complaints and the absence of appropriate communication” between the five staff members. The report concluded with the “options” being that “people behave as adults, resolve the conflicts and work together professionally and harmoniously, or they find somewhere else to work”.
In an attempt to resolve the conflicts, a facilitation was held in July 2018. During the facilitation, the parties discussed behaviours and expectations but the facilitator, somewhat prophetically, observed that she “doubted agreements made by the team are able
to be sustained”.
Ms Neil absented herself from the workplace from July 2018, initially on special leave awaiting the outcome of the facilitation, but following that, on sick leave until her entitlements were exhausted. She would never return to the workplace.
By August 2018 Ms Neil and Ms West had engaged an advocate, and it would appear on the advocate’s advice, Ms West also absented herself from the workplace from mid-September 2018 onwards, but was not granted special leave. Personal grievances were raised by Mss Neil and West in relation to, amongst other things, bullying and the refusal to pay special leave. The matter went to mediation but did not resolve.
In December 2018, NZNO stated in letters to these two employees that “…it is of concern to us that you continue to be so significantly affected by this particular event that occurred some eight months ago, and do not appear able to move on. I note in this regard that the incident in question was at the lower end of the spectrum in terms of seriousness and did not, in my view, amount to bullying”.
Further communication ensued, and on 11 February 2019, letters were sent stating that NZNO had reached the preliminary view that Mss Neil and West’s employment would terminate due to incompatibility. The employees refused to make further comment or meet to discuss the proposal. The termination of their employment was confirmed on 20 February 2019.
It has long been held that a dismissal for incompatibility can be justified, however, it is noted that the threshold is high so instances would be comparatively rare. The onus is on the employer to establish three broad grounds:
- The employer must establish the existence of irreconcilable incompatibility;
- The incompatibility must be wholly or substantially attributable to the employee; and
- The employer must carry out the dismissal in a fair manner.
The Authority concluded that the actions taken by NZNO in relation to Mss Neil and West’s complaints over the incidents in April 2018, including the investigation and facilitation meeting, were fair and reasonable. Likewise, the declining of their requests for special leave.
In relation to whether the dismissals were justified, the Authority held that NZNO had met the onus of showing its employment relationship with Ms West and Ms Neil was so broken that it had become irreconcilable, that the incompatibility was substantially attributable to the employees and that the dismissal process (not fully set out in this article due to space) was fair.
Mss Neil and West’s claims against NZNO were dismissed, and each of them were ordered to pay $14,000 in costs to NZNO.
