Most employers have met the employee who delivers on tasks but leaves tension in every room they enter. People stop sharing ideas, clients complain about tone, teams ask not to be paired with them. You are not looking at classic misconduct or poor output. You are bumping into cultural incompatibility.

Until recently, that was a legal minefield. Incompatibility existed in case law, but guidance was thin and scattered. The 2025 Code of Good Practice: Dismissal closes that gap. For the first time, it names incompatibility, including cultural misfit, as a form of incapacity and folds cultural fit into the test for suitability during probation.

That gives South African employers more room to act when culture clash is hurting the business, but it also raises the stakes. A clumsy “you just do not fit in here” conversation can still trigger unfair dismissal and discrimination findings.

This guide unpacks what the Code really says about cultural incompatibility, where the red lines are, and the practical steps businesses should take now.

What Exactly Is “Cultural Incompatibility” In South African Labour Law?

The new Code extends incapacity beyond illness and poor performance to cover incompatibility where an employee cannot work in harmony with the employer’s business culture or with fellow employees. It also confirms that probation is about more than performance. Suitability now explicitly includes attitude, conduct, cultural fit and interpersonal compatibility.

In practice, cultural incompatibility exists where:

• Behaviour repeatedly clashes with your stated values and working norms.
• Relationships or teamwork keep breaking down around one person.
• Attempts to coach or mediate have not resolved the pattern.

The key word is “behaviour”. Cultural incompatibility is about what people do, not who they are.

 

Why Cultural Incompatibility Is On The Radar Now

There is a clear business logic behind this legal shift. Research pulled together by South African HR bodies shows that so called “soft” issues like cultural incompatibility derail major projects more often than balance sheet problems. In mergers and large change programmes, culture clash comes up as a leading cause of failure.

Inside ordinary businesses, the same pattern plays out on a smaller scale:

• High performers get managed out informally because they poison collaboration.
• Teams silently carry the cost of one disruptive colleague for years.
• HR tries to squeeze long running personality and values conflicts into misconduct or harassment processes that are not designed for them.

The new Code does not invent these realities. It simply drags them into the open and insists that if you are going to end employment on this basis, you need to do it in a structured, reviewable way.

The Hard Boundary: Cultural Incompatibility Vs Discrimination

This is where employers can get burnt. Social scientists have long warned that “cultural incompatibility” language is sometimes used as a respectable wrapper for racism, xenophobia or other prejudice. South African law is very clear that harassment or exclusion linked to a protected or arbitrary ground amounts to unfair discrimination under the Employment Equity Act, and the 2022 harassment Code spells that out in detail.

So you have to hold two rules at the same time:

• You may treat behaviour that undermines your values, teamwork or client trust as cultural incompatibility.
• You may not disguise discomfort with someone’s race, nationality, language, gender, religion, age or similar as cultural incompatibility.

A simple test helps. If you strip away identity markers from the scenario and the behaviour would still be a serious problem, you are probably on the right track. If the problem disappears once you remove those markers, you need to stop and rethink.

 

When Cultural Incompatibility Can Justify Dismissal

Under the new Code, cultural incompatibility sits inside the incapacity framework. The usual twin test still applies: there must be a fair reason and a fair procedure.

Dismissal becomes more defensible where:

• The incompatibility is serious: it causes repeated conflict, complaints or loss of trust.
• The pattern is persistent: there is a track record, not a single awkward meeting.
• The employee understands the concern because you have linked it to policies or values in plain language.
• You have tried realistic alternatives such as coaching, mediation, realignment of duties or redeployment.

Section 21 of the Code makes this explicit and requires an investigation and consideration of options short of dismissal before you terminate for incompatibility. If you jump straight from vague discomfort to termination, you are inviting a CCMA finding against you.

 

Cultural Incompatibility During Probation: A Sharper Tool With Clearer Rules

Most incompatibility cases surface in the first few months. The new Code reflects that by expanding probation from a loose trial period into a structured window where both sides test performance and suitability, including cultural fit.

For employers, three things change:

1. You can end employment during probation for cultural incompatibility more easily than after confirmation, provided you still follow a fair process.
2. The Code expects you to manage probation actively, with feedback, guidance and a proper meeting before termination, not to treat it as a “we can cut you at any time” clause.
3. Your paperwork has to show that you looked at suitability in a concrete way.

 

A sound probation process for cultural incompatibility will usually have:

• Written cultural and behavioural expectations issued at onboarding.
• Short, dated notes after check ins that record both positives and concerns.
• Evidence of support offered, such as coaching, training or facilitated conversations.
• A final meeting where the employee can respond, bring a representative and see the reasons for any decision.

Probation lowers the threshold but does not remove the need for fairness.

Building Usable Evidence For Cultural Incompatibility

Most employers know an incompatibility problem when they see it. The trouble is proving it later. You can fix that by treating cultural incompatibility like any other risk and building three simple evidence streams.

a) Impact on work

Record tangible effects: client complaints, project delays, teams refusing assignments, resignations that mention the person, grievances from colleagues. Stay factual. “People do not like him” is useless. “Three team members asked to be moved after repeated shouting in meetings” is useful.

 

b) Behaviour against values

Translate your organisational values into specific, observable behaviours. If “respect” is a value, that might include listening without interrupting and disagreeing without insults. Then record incidents where behaviour falls short and show that pattern over time.

 

c) Intervention history

Keep a running log of every step you take: coaching sessions, written warnings, mediation attempts, adjusted duties. Note dates, who was present and what was agreed.

By the time you get to a formal incapacity enquiry, you should be able to place these three streams on the table. That makes your decision traceable, not arbitrary.

 

Designing Culture So It Survives Legal Scrutiny

Cultural incompatibility is only as strong as the culture you claim to protect. If your culture statement is fuzzy, subjective or coded, you will struggle to defend dismissals based on it.

Three design choices make a difference:

1. Describe culture in operational terms
   Move away from labels like “rock star”, “champion” or “young and hungry”. Define culture through how work is done: response times, safety habits, ethical rules on procurement, standards for client communication. When culture is concrete, incompatibility is easier to show.
2. Separate healthy difference from damaging disruption
   Diverse styles and backgrounds are an asset. The legal problem is not disagreement or discomfort. It is sustained behaviour that undermines cooperation, fairness or safety. Training managers to tell the difference is critical. Strong cultures absorb difference. They act when someone regularly breaks shared rules.
3. Cross link with harassment and equality policies
   Your disciplinary, incapacity and harassment policies should reference each other and the 2022 harassment Code. Managers must see, in writing, that “cultural incompatibility” cannot be used to sidestep discrimination rules.

 

Commercial Value: Using Cultural Incompatibility As A Risk Tool

Handled well, the recognition of cultural incompatibility in the Code does more than close a gap in labour law. It can improve how your business manages people risk.

You gain three concrete advantages:

• Better hiring filters
  When cultural fit is clearly defined, interviewers can test for it with structured questions instead of vague impressions. That reduces the number of “how did this person get through the door” hires.
• Faster resolution of chronic conflict
  Instead of living for years with a divisive high performer, you have a recognised incapacity route that supports early, documented intervention. Teams see that behaviour has consequences, not just technical output.
• Stronger governance story
  In sectors where governance and ESG reporting matter, being able to show a clear, consistent approach to cultural incompatibility that aligns with the Code and equality law builds trust with boards, investors and regulators.

 

Practical Action Plan For South African Employers

If you are responsible for HR or leadership, treat the new Code as a project, not a memo. Over the next few months:

• Update disciplinary, incapacity and probation policies to include incompatibility and suitability.
• Rework contracts and offer letters so probation expectations and review points are explicit.
• Translate your values into observable behaviours and include them in induction and performance reviews.
• Align harassment and discrimination policies with the 2022 harassment Code and train managers on the overlap with cultural incompatibility.
• Create a simple template for recording cultural incompatibility concerns, interventions and outcomes.
• Run scenario based training so managers can practise difficult conversations about behaviour and fit.

These steps cost less than a single complex CCMA dispute and usually deliver quick cultural benefits inside the business.

FAQs On Cultural Incompatibility And Dismissal In South Africa

1. Is cultural incompatibility now a lawful ground for dismissal?

Yes. The 2025 Code of Good Practice: Dismissal recognises incompatibility, including cultural incompatibility, as a form of incapacity that can justify dismissal if you follow a fair process and the problem is serious and ongoing.

 

2. Can I dismiss someone just because the team says they “do not fit in”?

Not safely. You need objective evidence: specific behaviours, demonstrated impact on work or relationships, a record of attempts to address the issue and a proper hearing. Popularity is not a legal test.

 

3. Does cultural incompatibility only apply during probation?

No. It can arise at any stage. Probation simply gives more flexibility, provided you still give feedback, support and a chance to respond before dismissal.

 

4. How does the harassment Code affect these cases?

If complaints about “fit” are rooted in prejudice against protected characteristics, you are dealing with harassment or unfair discrimination, not cultural incompatibility. Your investigation must look for that link, and your decision must align with the harassment Code and the Employment Equity Act.

 

5. Do small businesses get more leeway?

Yes, the Code recognises limited HR capacity in small firms and allows less formal procedures. But the basics do not change. Employees must understand the allegations, have a real chance to respond and see that you considered alternatives before dismissal.

Cultural Incompatibility Is Not A Vibe Check

Cultural incompatibility has always influenced who stays and who goes. The difference after the 2025 Code is that you can no longer treat it as a vague gut feel. If you want to rely on cultural incompatibility as grounds for dismissal, you have to define your culture clearly, confront behaviour early, document your efforts and keep discrimination out of the picture. Businesses that do this well will not only stay on the right side of South African labour law. They will also build teams that actually live the culture they advertise. When in doubt, sit with your HR and labour law advisors before you label a problem as cultural incompatibility and act on it.