Consistency in Disciplinary Matters

In order to show that a dismissal is fair, the following must be proved: the existence of a rule, the employee was aware of the existence of the rule, the employee breached the rule and that the rule has been applied consistently both historically and contemporaneously.

Of all the elements of substantive fairness, the one that poses the most difficulty for employers is consistency. Often when employees are brought before disciplinary enquiries, their biggest defence seems to be that others have committed the same offence in the past and have been allowed to get away with it. Does this then mean that employers are forever bound by the fact that action was not taken against employees for similar misconduct in the past or where action was taken but a less harsh sanction was imposed? Whilst it is true, that consistency is a fundamental pillar of substantive fairness, it cannot be looked at in isolation.

In the matter of Samwu & Dawood v Ethekwini Municipality 2016 (LC), the Applicant challenged a portion of the Commissioner’s award in which he was granted compensation as opposed to reinstatement. His application was based on consistency - other employees had committed the same offence and they were still in the employment of the Respondent. The Court held that although consistency is an element of substantive fairness, it must be looked at in conjunction with the surrounding, relevant factors. They further took into account certain other factors such as the fact that the Applicant’s case was distinguishable from that of his colleagues as they were now complying with the instruction while he persisted in refusing to comply, the employment relationship had broken down to the extent where it was now intolerable and dismissed the application.

Consistency is often referred to as the parity principle which simply means that like cases should be treated alike. However, the recent Labour Appeal Court case of Absa Bank Ltd v Naidu & Others 2015 (LAC) gave clarity on the application of the parity principle and stated as follows:

“After considering the authorities on the parity principle, the Court was of the view that the parity principle must not be applied willy-nilly without any measure of caution. Although the element of consistency on the part of an employer in its treatment of its employees is an important factor to take into account in the determination of fairness of a dismissal, the court cautioned that consistency is only one of a number of factors to take into account in the process and it is by no means decisive of the outcome. The fact that another employee has committed a similar transgression in the past and was not dismissed cannot, and should not, be regarded as a licence to every other employee to commit serious offences, especially of a dishonest nature, in the belief that he or she will not be dismissed. The parity principle was never intended to promote or encourage anarchy in the workplace.”

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In NUM and another v Amcoal Colliery t/a Arnot Colliery and another 2000 869(LAC), a matter that dealt with sixteen employees who had been dismissed for failing to comply with an instruction, the Court stated as follows:

“The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence.”

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Equally problematic are situations in which employees are charged with serious offences, such as assault or gross dishonesty and are found guilty only to be given a mild sanction such as a written warning. The employer, who does not have the right to appeal or review the outcome of their own internal hearings, is then left to face the situation where other employees could potentially rely on this as a defence when they commit the same or similar offences. The employer should in this case communicate to employees that such behaviour is intolerable, will not be accepted and could potentially result in a dismissal if anyone else is found to be guilty at a later stage.

In SACCAWU and Others v Irvin & Johnson 1999 (LAC), the court held as follows:

“The best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision….a wrong decision can only be unfair if it is capricious, or induced by improper motives, or worse, by a discriminating management policy’.”

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?“It must be so that an employer cannot be expected to continue repeating a wrong decision in obeisance to a principle of consistency…While the proper course in such cases is to let it be known to employees clearly and in advance that the earlier application of disciplinary measures cannot be expected to be adhered to in the future.”

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Consistency is indeed fundamental to substantive fairness and every effort should be made to uphold it. However, this should not lead to employers being held to ransom by being forced to retain in their employment undesirable employees especially where the working relationship is intolerable simply due to the fact that a wrong decision had been made in the past.