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Employers are often caught out on that very little or most understood thing called consistency.
Consistency applies in two ways. It applies to consistency of procedure - namely that everybody must be measured by the same standard, and it applies to consistency of sanction. The sanction applied in similar acts of misconduct will not necessarily always be the same sanction - it depends on circumstances.
However, in considering a sanction to be applied in a matter of misconduct, the employer must follow the vital process of checking his personnel records for previous similar acts of the same misconduct committed by other employees, and giving serious consideration to the sanction applied in those instances, and the reasons for it.
In NUMSA obo Engelbrecht v Delta Motor Corporation [1998] 5 BALR 573 (CCMA) the applicant stated that he had applied for a post with the employer after having been dismissed by his previous employer for theft.
At the interview, the applicant informed the employer that he had resigned from his previous post. About six weeks after he started his new employment, the employer confronted him with a newspaper article indicating that he had been dismissed for theft by the previous employer, and had not in fact resigned as stated by the employee at the interview.
The employee confessed and apologised, but he was charged with "deliberate failure to disclose material information upon employment, and a deliberate attempt to mislead the company." A disciplinary hearing was held and he was subsequently dismissed. The employee alleged that his dismissal was unfair because the employer had failed to apply discipline consistently. The issue that the Arbitrator was required to decide upon was whether the dismissal of the employee was substantively fair.
The Commissioner noted that the main contention of the employee was that his dismissal was inconsistent with decisions taken by the employer in previous cases. (Employers please note - you must take into account the procedure followed, and the sanction applied and the reasons for it, in all previous cases of similar misconduct in your organization. This emphasises the vital importance of accurate and detailed record-keeping of disciplinary offences.)
The Commissioner found that there were two previous cases with this employer that the employees cited in support of his contention of inconsistency. In the one case, the employee had been dismissed for failing to disclose a skin allergy in his written application form. In the other case, the employee had not been dismissed for making a false report about an accident and for allowing and an authorised person to drive a least vehicle.
Since in the second case, the employee had failed to disclose a former act involving dishonesty, the Commissioner found that the employer had in fact acted inconsistently in the application of its policies regarding employees who had failed to disclose material information in their application forms. Since the employer in the case under review had not succeeded in justifying its inconsistency, the employee Engelbrecht was reinstated.
So here the employer finds himself in the following position :
[a] spending time and resources in investigating the alleged misconduct and charging the employee;[b] spending time and resources in conducting a disciplinary hearing[c] having to spend more time and resources ( money!!) at CCMA conciliation[d] more time and resources (more money and frustration!!) at CCMA arbitration.
And what did the employer get out of all this is?
The dismissed employee lands right back in his lap!!
" Hallo boss !! Guess what ?? I am back at work!!"
It is quite obvious that at the arbitration, NUMSA and the employee sharpened their pencils and did their homework. It is equally obvious that the employer did not sharpen his pencil and did not do his homework. The reinstatement of an employee – whom the employer does not want in his organisation anyway - came about because the employer failed in two vital areas.
When an employee is reinstated, it shows two glaring errors by the employer – sloppy investigation, sloppy procedure, and very often incompetence on the part of the Chairperson. This last arises usually because of lack of training and experience on the part of the Chairperson.
The Chairperson must make absolutely certain that correct and proper procedure is followed - taking into account the employer's own disciplinary code and procedure. In arriving at his verdict, the chairperson must be able to state in writing what his reasons were for finding the employee guilty as charged.
Coupled to that, in arriving at a sanction, the chairperson must be able to state in writing what his reasons were for arriving at that particular sanction - and what his reasons were for rejecting other possible sanctions, and what his reasons were for not applying sanctions that were handed down in previous cases of similar misconduct.
As mentioned above, in this case the employer failed to justify his reasons for his inconsistency - had this employer done what is stated in the preceding paragraph, he would not have had this employee back in his organization.
It really is that simple.
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