Consistency in dismissal for misconduct is fundamental to fairness but is often misunderstood. It requires that similar offences are treated similarly, and different cases are treated according to their distinct circumstances. This principle is sometimes referred to as the parity principle. However, consistency should not be confused with rigidity, meaning that while employers must strive for uniformity, there should be room for flexibility based on specific case details.
The requirement for consistent treatment in dismissals is outlined in Item 7 of the Code of Good Practice: Dismissal, which emphasizes that an arbitrator must consider whether the employer has applied the rule or standard consistently when determining whether a dismissal for misconduct is substantively fair. Additionally, Item 3 of the same Code mandates that employer rules should promote both certainty and consistency in disciplinary matters.
In disciplinary hearings, employees often raise inconsistency in treatment as a defence. Inconsistency can be historical or contemporaneous. Historical inconsistency refers to situations where an employer suddenly applies a sanction they have not enforced before, without providing adequate notice to employees. Contemporaneous inconsistency occurs when different employees involved in the same misconduct receive different penalties, or when only some are punished. It is considered unfair to treat similar offences differently without justifiable reasons.
Although the employer carries the burden of proving that a dismissal was fair, employees who claim inconsistency must present prima facie evidence to which the employer must respond. In Government Printing Works v Mathala N.O. and Others [2016] ZALCJHB 358, the court held that the employee must first demonstrate the alleged inconsistency by identifying the comparator employees and their respective circumstances. Moreover, the situations of the employees being compared must be similar enough to justify a comparison. A mismatch in comparison, such as using different circumstances or outcomes, weakens the inconsistency claim.
The court in Magumbo v Nkomati Joint Venture and Others [2015] ZALCJHB 309 went further, stating that merely mentioning other employees’ names and penalties isn’t enough; employees must provide complete records of the disciplinary hearings where lesser sanctions were imposed, allowing for a full comparison of the cases.
In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 452 (LC); [2009] 11 BLLR 1128 (LC), the court emphasized that inconsistency challenges should meet both subjective and objective criteria. Subjectively, an inconsistency challenge will fail if the employer was unaware of the misconduct of the comparator employee. Objectively, there must be a similarly situated employee who received different treatment, typically in the form of a less severe disciplinary penalty.
Employers, on the other hand, must justify each disciplinary decision and explain differences between seemingly similar cases. Rigid adherence to a disciplinary matrix is insufficient; employers must account for the unique circumstances of each case. The Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd and Others [2007] ZACC22, clarified that arbitrators must independently assess whether a dismissal was fair based on the facts of the case, rather than deferring to the employer’s disciplinary code and has to apply a sense of fairness.
In making fair decisions, employers should explain their actions with reference to business needs and the impact of the employee’s misconduct. Sanctions should balance various factors, including the nature of the offence, the employee’s circumstances, and the interests of both the employer and other employees. Factors to consider include the severity and consequences of the offence, the operational risk posed by retaining the employee, and whether the employee has shown remorse. These factors are crucial in determining whether the employer-employee relationship has irreparably broken down.
While consistency is critical in ensuring fairness in disciplinary matters, it is not an absolute principle. Consistency aims to prevent unjustified selective punishment but does not obligate employers to impose identical sanctions on employees with differing circumstances. The Labour Appeal Court in Nyathikazi v Public Health & Social Development Sectoral Bargaining Council & Others (2021) 42 ILJ 1686 (LAC), reaffirmed that while discipline should be applied consistently, fairly and reliably, the same misconduct does not always warrant the same sanction.
In conclusion, inconsistency alone does not automatically render a disciplinary decision unfair. It must be arbitrary or influenced by improper motives to be considered unjust. Nonetheless, employers must remain vigilant and avoid inconsistent disciplinary actions to maintain fairness.
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