Running the Gauntlet of Consistency
June 12, 2018
In terms of the Schedule 8 the Code of Good Practise: Dismissals " When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.
The Code places a duty on the employer to evaluate the circumstances of each case to determine whether a dismissal will be an appropriate sanction.
The Code however further provides that: "The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration."
Many chairperson and arbitrators alike dismally fail to understand and properly evaluate these requirements, which to a certain extent, provides for an inconsistent consistency. It begs the question how one should take into consideration the circumstances of each case, which is inconsistent, but at the same time apply discipline consistently.
In one of the most recent cases JR 2416/15; Assmang (Pty) Ltd t/a Khumani v L Teteme and others, the employer dismissed an employee, a drill rig supervisor, for failure to follow a safety working procedure by walking across a bridge that was reserved for vehicle traffic only. Various employees of lower positions who were under the supervision of the employee and accompanied him also walked over the bridge and committed the same misconduct but were not disciplined. These employees could however not be identified.
The arbitrator found that the dismissal of the employee was unfair due to the fact that the employer applied discipline inconsistently. The Labour Court however found that the commissioner erred in his award and ruled that the dismissal was substantively fair. This was based on the fact that the employee was in a position of seniority and that a dismissal was a fair sanction taken into consideration the seriousness of the transgression.
The court referred to the judgement of the Labour Appeal Court in Gcwensha v CCMA & Others [2006] 3 BLLR 234 (LAC) where the court ruled that: "Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as I say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. In my view, the fact that another employee committed a similar transgression in the past and was not dismissed cannot, and should not, be taken to grant a licence to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer in the belief that they will not be dismissed. It is well accepted in civilised society that two wrongs can never make a right. The parity principle was never intended to promote or encourage anarchy in the workplace. As stated earlier, I reiterate, there are varying degrees of dishonesty and, therefore, each I case will be treated on the basis of its own facts and circumstances.”
The Court in the Assmang-Case set aside the arbitration award and stated that: "It is apparent from the arbitrator’s reasoning that he equated the gravity of the breach of the safety rule committed by the third respondent with that of his subordinates. In a simplistic sense, the arbitrator cannot be criticised for saying that safety was also the responsibility of the third respondent’s subordinates. However, what the arbitrator simply did not consider was whether an even greater responsibility lay on the third respondent in view of his line management position and more specifically his responsibilities under the MHSA as a regulation 2.9.2 supervisor. Had the arbitrator considered these, the arbitrator would have struggled to avoid the conclusion that third respondent’s infringement of the regulation was far more serious than the same infringement by his subordinates because of his more onerous responsibilities for safety."
It is of the utmost importance that employers should utilise chairperson who are properly trained in all aspects of labour law. It is evident form the above-mentioned cases cases that concepts which may seem to be simple in nature may result in extensive and expensive litigation and is often misunderstood even by commissioners. A proper motivated outcome in a disciplinary hearing may mean the difference between a reinstatement and a victory at the CCMA.