Item 3 (6) of Schedule 8 (Code of Good Practice: Dismissal) of the Labour Relations Act, 66 of 1995, 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.” This means that the sanction imposed by the employer should align with how it has been applied in the past to the same and other employees, and it should be uniform among employees involved in similar misconduct. This provision underscores the importance of fairness and predictability in disciplinary actions.

Consistency is a fundamental aspect of fairness in the disciplinary process, as it ensures that similar cases are treated similarly, thereby promoting trust and transparency within the Organisation. By adhering to consistent standards and procedures, Organisations demonstrate their commitment to equitable treatment for all employees, fostering a sense of justice and reliability. This uniformity not only prevents perceptions of bias and favouritism but also enhances the legitimacy of the disciplinary process. Consequently, employees are more likely to trust the system and comply with Organisational policies, knowing that the rules are applied impartially. Furthermore, consistent disciplinary actions help to maintain a positive workplace culture where employees feel respected and valued, ultimately contributing to overall Organisational integrity and effectiveness.

In the context of disciplinary hearings, consistency involves applying the same standards and procedures across all cases to maintain fairness and integrity. This principle is crucial for several reasons as outlined hereunder:

1. Promotes Trust and Confidence

When employees observe that disciplinary actions are applied consistently, they are more inclined to trust the process. This trust is crucial for maintaining morale and fostering a positive workplace culture. Employees who perceive the disciplinary process as fair are more likely to respect and adhere to Organisational rules and policies.

2. Reduces Perception of Bias

Inconsistent application of disciplinary actions can create perceptions of bias or favouritism, potentially undermining the legitimacy of the process. Consistency plays a crucial role in mitigating these perceptions by ensuring uniform application of standards across all employees. This is especially significant in diverse workplaces where concerns about discrimination or unequal treatment may surface.

3. Ensures Legal Compliance

Consistency in disciplinary hearings is also a legal requirement. Labour laws and regulations often mandate fair treatment of employees, and inconsistency can lead to claims of unfair dismissal or discrimination. Adhering to consistent procedures helps Organisations comply with these legal requirements and avoid costly legal disputes.

4. Facilitates Predictability and Clarity

A consistent approach to disciplinary actions provides clarity for both management and employees. It sets clear expectations for behaviour and consequences, making it easier for everyone to understand the rules and the potential repercussions of violating them. This predictability helps in managing employee conduct and maintaining order within the Organisation.

5. Supports Effective Decision-Making

Consistency aids decision-makers in evaluating disciplinary cases more effectively. By referencing past cases and established precedents, decision-makers can ensure that their actions are justified and proportionate. This also helps in documenting the rationale behind disciplinary decisions, which can be important for internal records and in the event of an appeal or external review.

6. Enhances Organisational Integrity

An Organisation that consistently applies its disciplinary policies demonstrates integrity and commitment to its values. This can enhance the Organisation’s reputation both internally and externally. Stakeholders, including employees, customers, and partners, are more likely to view the Organisation positively when they see that it upholds fairness and justice.

Best Practices for Ensuring Consistency

1. Develop Clear Policies:

Establish comprehensive disciplinary policies that outline acceptable behaviour and corresponding consequences. Ensure these policies are communicated to all employees.

2. Train Managers and Supervisors:

Provide training on how to apply disciplinary policies consistently. This includes understanding the importance of consistency and how to document and report disciplinary actions.

3. Use Precedents:

Maintain records of past disciplinary cases and use them as a reference for future decisions. This helps in applying similar penalties for similar offenses.

4. Regular Reviews:

Periodically review disciplinary policies and their application to ensure they remain relevant and consistently applied. Update policies as necessary to reflect changes in laws or Organisational priorities.

5. Seek Legal Advice:

In complex cases, seek legal advice to ensure that disciplinary actions comply with labour laws and regulations.

Legal Precedents and Jurisprudence

Consistency is pivotal in upholding fairness and equity within legal and disciplinary frameworks, requiring that comparable cases receive similar treatment to uphold credibility and justice. Legal precedents, shaped by past court decisions, serve as a crucial foundation for decision-makers, ensuring disciplinary measures adhere to established legal principles rather than being arbitrary.

In his book Dismissal (2nd edition, 2014, p. 187 onwards), Professor John Grogan sums up the concept of consistency as follows:

“The requirement that employees must be aware of the rules of the workplace gives rise to the further principle that employers must apply their rules consistently. Historical inconsistency occurs when an employer has in the past, as a matter of practice, not dismissed employees or imposed a specific sanction for a contravention of a specific disciplinary rule. On the other hand, contemporaneous inconsistency occurs when two or more employees engage in the same or similar conduct at roughly the same time, but only one or more of them are disciplined, or where different penalties are imposed.”

Professor Grogan further warns that the “parity principle” should be applied with caution because it may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different disciplinary officers had different views on the appropriate penalty.

In Consani Engineering (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 1707 (LC) at para 19, the court held:

“The requirement of consistency is not a hard and fast rule. It is something to be kept in mind as an aspect of disciplinary fairness. Flexibility in adapting to a changing environment is equally important. Shifts in policy inevitably introduce standards not consonant with past practices.”

In SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 1957 (LAC), the court held:

“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.” (at para 29).

The ratio in SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 1957 (LAC) was succinctly encapsulated by Snyman AJ in Masubelele v Public Health and Social Development Sectoral Bargaining Council and Others (JR 1151/2008) [2013] ZALCJHB 3 at para 34:

“In my view, the ratio in the judgment in SA Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd is clear. The following principles apply to the determination of the issue of inconsistency so as to ensure inconsistency is not found to exist in the case of dismissal of employees:

1. Employees must be measured against the same standards (like for like comparison);

2. The chairperson of the disciplinary enquiry must conscientiously and honestly determine the misconduct;

3. The decision by the employer not to dismiss other employees involved in the same misconduct must not be capricious, or induced by improper motives or by a discriminating management policy (this conduct must be bona fide);

4. A value judgment must always be exercised.

The Labour Appeal Court in ABSA Bank Ltd v Naidu & Others [2015] 1 BLLR 1 (LAC) held regarding consistency:

“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 license to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer in the belief that they would 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.”

In Metsimaholo Local Municipality v South African Local Government Bargaining Council and Others [2016] 5 BLLR 435 (LAC), the Labour Appeal Court found that the employer had been inconsistent in charging and subsequently dismissing two employees for dishonest misconduct while eighteen other employees, who previously engaged in the same conduct, were not charged. The court further ordered the employer to reinstate the two employees with back-pay, holding at paragraph 35:

“The inconsistency, which in my view was clearly shown, was not the only reason why the arbitrator found that the dismissals of the respondent employees were not fair. It was merely one of the reasons.”

In National Union of Mineworkers on behalf of Botsane v Anglo Platinum mine (Rustenburg section) (2014) 35 ILJ 2406 (LAC), the Labour Appeal Court emphasized the importance of raising the inconsistency case from the beginning of the proceedings and with relevant detail. At paragraph 39, the court stated:

“Moreover, as a matter of practice, a party, usually the aggrieved employee, who believes that a case for inconsistency can be argued, ought, at the outset of proceedings, to aver such an issue openly and unequivocally so that the employer is put on proper and fair terms to address it. A generalised allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly. Introducing such an issue in an ambush-like fashion, or as an afterthought, does not serve to produce a fair adjudication process.”

In Mphigalale v Safety & Security Sectoral Bargaining Council & others (2012) 33 ILJ 1464 (LC), it was held:

“This court, in numerous previous decisions, has viewed dishonesty in a serious light and has come to the conclusion in most instances that it results in a breakdown of the trust relationship between the parties. I am accordingly satisfied that the decision of the commissioner that the dismissal of the applicant was fair, in spite of the existence of a previous inconsistent sanction imposed on two policemen previously for the same misconduct and mitigating factors, was reasonable. It follows, therefore, given the nature of the misconduct committed by the applicant, that the SAPS ‘cannot be expected to continue repeating a wrong decision in obeisance to a principle of consistency,’ even in spite of there being no evidence of notice by the employer to its employees that employees who were found guilty of corruption would henceforth face dismissal.”

In Conmed Health CC v Bargaining Council for the Chemical Industries and Others (2012) 33 ILJ 623 (LC) at paragraph 8, the Court held:

“As stated previously by this court the parity rule does not take away the right of the employer to impose different sanctions on employees who were involved in the same act of misconduct. The issue when faced with the complaint that the employer has applied discipline inconsistently is to consider the fairness of such inconsistent application of discipline. In other words, the differential sanctions do not automatically lead to the conclusion that the dismissal was unfair. The fairness of the dismissal has to be determined on the basis of whether the employer, in imposing differential sanctions, acted unfairly. In assessing the fairness of a dismissal in a case involving the imposition of differential sanctions, the commissioner has to consider whether there is an objective and fair reason for imposing different sanctions for misconduct arising from the same offence.”

Conclusion

In light of the above discussions, it is recommended that employers should adopt a consistent approach to employee discipline across the organisation. Employers must ensure that disciplinary penalties and sanctions are aligned with the previous sanctions meted out against employees, except in cases where strong, justifiable reasons warrant deviation. Finally, it is advisable that employers should appoint independent professional chairpersons to preside over internal disciplinary hearings. These appointed chairpersons must demonstrate the necessary skills, knowledge, and experience in conducting disciplinary hearings to uphold fairness and integrity in the process. By adhering to these recommendations, organisations can foster a culture of trust, transparency, and fairness, thereby enhancing overall workplace harmony and productivity.

Written by Magate Phala, Labour Law Specialist and founding Director of Magate Phala & Associates