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Inconsistency relating to the disciplinary sanctions

By Magate Phala

 

Item 3 (6) of Schedule 8, LRA, stipulates 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.

 

The courts have distinguished between historical inconsistency and contemporaneous inconsistency. Historical inconsistency occurs when an employer has in the past, as a matter of practice, not dismissed employees or imposed a specific sanction for contravention of a specific disciplinary rule.

 

Contemporaneous inconsistency occurs when two or more employees engage in the same or similar conduct at roughly the same time, but only one or some of them are disciplined, or where different penalties are imposed.

 

In Southern Sun Hotel Interests (Pty) Ltd v CCMA & others [2009] 11 BLLR 1128 (LC), the court held that inconsistency claim will fail where Employer is able to differentiate between Employees who committed similar transgressions on the basis of, inter alia, differences in personal circumstances, the severity of the misconduct or on the basis of other material factors.

 

The basis for the principle governing the need for consistency in discipline was stated by the Labour Appeal Court in Gcwensha v CCMA & Others (2006) 3 BLLR 234 (LAC), in the following terms:

 

“Disciplinary consistency is the hallmark of progressive labour relations that every employee must be measured by the same standards.” The Court went further to say “when comparing employees care should be taken to ensure that the gravity of the misconduct is evaluated

 

In NUM and another v Amcoal Colliery t/a Arnot Colliery and another [2000] 8 BLLR 869(LAC), in determining the fairness of the dismissal of Sixteen employees who had been dismissed for failing to comply with an instruction (at page 875 middle para 19), the court said the following:

“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.”

 

In SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 1957(LAC). the court found that;

“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’.”

 

The LAC continued:

“It must be so that an employer cannot be expected to continue repeating a wrong decision in obeisance to a principle of consistencyWhile 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. Fairness, of course, is a value judgment, to be determined in the circumstances of the particular case, and for that reason there is necessarily room for flexibility, but where two employees have committed the same wrong, and there is nothing else to distinguish them, I can see no reason why they ought not generally to be dealt with in the same way, and I do not understand the decision in that case to suggest the contrary. Without that, employees will inevitably, and in my view justifiably, consider themselves to be aggrieved in consequence of at least a perception of bias’.

 

In CEPPWAWU v NBCCI and Others [2011] 2 BLLR 137 (LAC), the court held that;

In cases of collective misconduct the employer is only obliged to discipline employees in respect of whom it has evidence. An employer is not obliged to investigate the identity of every person who may have participated in wrongful activity. In the case of collective misconduct a "wrong decision" resulting in an acquittal of an employee who did commit an offence will only be unfair "if it is a result of some discriminatory management policy“.

 

In Greater Letaba Local Municipality v Mankgabe NO and others [2008] 3 BLLR 220 (LC) , the court held that

where, as in this case, Employer has a huge workforce, it is of vital importance that consistent sanctions are constantly imposed on Employees found guilty of the same misconduct, where there is nothing else to distinguish the one from the other. This is the general rule of the principle of consistency.

 

In Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC), the court held that “Employer is required by considerations of fairness to act consistently in the application and enforcement of its disciplinary rules and management policies designed to instil discipline”.

 

Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC), the Labour Appeal Court held that “like cases should be treated alike. In appropriate cases an Employer may be justified in differentiating between two employees guilty of the same transgression on the basis of their personal circumstances or on merits”.

 

Magate Phala specialises in Labour Law, He is a registered SABPP ER Practitioner. a member of South African Society for Labour Law and he writes in his personal capacity..  You may contact Magate at This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

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