By Scott Wilson, Partner and Julia Shallcrass, Senior Solicitor
You can't please all of the people all of the time.
If you are dealing with serious incompatibility at your workplace, you might wonder whether you can appease some of the people any of the time.
Employers usually come under scrutiny in cases of alleged incompatibility in the workplace but the recent case Vicki Jane Walker v Procare Health Limited is one of the few judgments in New Zealand to find in favour of the employer, following a dismissal for serious incompatibility.
Serious incompatibility can take the form of squabbles, taunting, petty fights, frequent nasty comments, endless arguments, threats of exposing a colleague's reputation to their spouse, and other dysfunctional relationships between colleagues. Such incidents usually occur over a period of time.
Incompatibility can disrupt productivity, deride performance, divide loyalty, and impact on the trust and confidence required from a workplace relationship.
Dealing with this issue can be problematic for many employers. In some rare circumstances, it can even justify dismissal.
Recent Case: Walker v ProCare Health Limited
The recent case Vicki Jane Walker v Procare Health Limited is one of the few judgments in New Zealand to find in favour of the employer.
Financial controller Ms Walker was dismissed for incompatibility following a spate of incidents relating primarily to her communication style and behaviour.
Ms Walker referred to a senior colleague in a less than endearing way as "that thing there.'' Her choice of red font and series of exclamation marks prompted her colleagues to think she was 'shouting' at them in her emails.
During the festive season, Ms Walker engaged in a pre-Christmas lunch spat with a colleague. When her colleague, Ms Smythe, cancelled for Christmas lunch that day, Ms Walker replied: "No worries Penny, I already had you down for a cancellation." Ms Walker further explained that: "[H]istorically that's what you always do. You always end up cancelling."
Ms Smythe said she felt that Ms Walker's comment was "just so rude." Ms Duncan, who shared Ms Walker's office, chimed in that Ms Walker should "shut up." All three colleagues cancelled their reservations for the Christmas lunch that day.
Ms Walker made it clear that she was not prepared to change her behaviour in any way. Even though she had raised workplace stress as an issue, she did not compromise on any of the recommendations of the Audit and Risk Committee arising from an external report for a remedial plan.
When she was dismissed for incompatibility, Ms Walker raised a personal grievance claim for unjustified dismissal. She was successful in the Employment Relations Authority. In her quest for a higher award, she elected to have the matter heard at the Employment Court.
But the high-risk gamble did not pay off; the Employment Court upholding the dismissal for incompatibility.
The Employment Court was required to objectively assess all of the evidence against the 'test of justification' as it then stood. The Court considered whether the dismissal, and how the employer acted, were what a fair and reasonable employer would do in all the circumstances at the time the dismissal or actions occurred.
To justify dismissing Ms Walker, her employer established that the necessary level of incompatibility existed; that Ms Walker was substantially responsible for the irreconcilable breakdown; and that the employer had acted in a procedurally fair manner.
- The Court considered that the evidence of the "existence of irreconcilable incompatibility" was "quite overwhelming."
- Ms Walker's "uncompromising and largely irrational behaviour," made her "substantially responsible for the irreconcilable breakdown in her employment relationship."
- The Court considered that Ms Walker was treated in a procedurally fair manner. The "initiatives taken by ProcCare to try and resolve the impasse" were fair, timely and reasonable. Moreover, the employer was proactive and responsible:
- ProCare proposed to pay for a comprehensive professional health assessment, following her 'cry for help' email in which she raised issues of stress;
- ProCare's Audit and Risk Committee established and attempted to introduce a remedial plan to alleviate Ms Walker's stress;
- ProCare appointed a Senior Manager, People and Culture with the primary task of assisting to improve staff culture and leadership; and
- ProCare appointed a professional mediator to attempt to resolve complaints by staff members in a non-disciplinary manner.
When faced with incompatibility in your workplace, we recommend that you consider:
- Seeking the guidance of a consultant, such as an organisational psychologist, to identify how any incompatibility occurred and how to resolve the issues.
- Engaging in facilitation or discussion with the conflicting employees. If necessary, you could request assistance or mediation through the Ministry of Business, Innovation and Employment.
- Dealing with issues that relate to performance, through a performance management process.
- Separating your conflicting employees to minimise disharmony, such as changing their shifts or transferring them, provided you have their consent.
- Establishing policies and procedures, such as appropriate use of emails – so you can take action if there are any 'shouting emails'.
If you are considering dismissal, you must:
- Establish that there is a necessary level of incompatibility.
- Establish that your employee was substantially responsible for the irreconcilable breakdown that had developed in the employment relationship.
- Carry out the disciplinary process and dismissal in a procedurally fair manner.
If faced with a potential issue of a personality conflict, a spate of pre-Christmas spats, 'shouting' emails, or disharmony in your workplace, you should take swift action to resolve issues before they get out of hand.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.