Discipline and Dismissal



A term that is often heard in the context of the application of discipline in the workplace is the word "consistency" or its opposite, "inconsistency."


It is not always easily understood exactly what this means, and so we are going to examine this requirement - because that really is what it is - a requirement of the employer that he be "consistent" in the application of disciplinary action, and that he avoid "inconsistency.",

 

The dictionary definition does not help us much - it merely defines the word "consistent" as being "a state of consistency." A better definition would that be to say that consistency means "treating like with like", or "applying the same standard to all", or "measuring all by the same standard." That probably brings us to a closer understanding of what is meant.



In other words and generally speaking, it would be unfair to treat people who have committed similar acts of misconduct differently - it would be unfair to treat people, who have committed similar acts of misconduct, by a different standard, or measure the seriousness of the act of misconduct by a different standard than the standard that was applied to others who have committed the same act of misconduct.



This is where the term " historical inconsistency" comes from. Historical inconsistency means that where you have had a number of employees who have all committed the same act of misconduct and different times, those employees have not been measured by the same standard - the same disciplinary procedure has not been applied.



Thus, the opposite - namely historical consistency - would show that in the past, each time the same act of misconduct was committed by different employees, the employer applied the same standards of measurement and followed exactly the same disciplinary procedure in each case.



There is another type of consistency known as "contemporaneous consistency." It means, very simply, "collective consistency." To break this down even further, it means that in instances of collective misconduct, where a number of employees have committed an act of misconduct at the same time, then each employee involved in that collective act of misconduct must be treated the same and by the same standard, and the same procedure must be applied to all.



Contemporaneous inconsistency would come about where two or more employees have committed the same act of misconduct at the same time, but not all are subjected to disciplinary action, but only some are. Or where some would be subjected to a certain disciplinary procedure, and a different disciplinary procedure would be invoked for others.



Historical inconsistency would come about where, for example, in past instances of a certain act of misconduct, the employer has, for example, imposed only a verbal warning order a written warning, but now in another similar or exactly the same incident, he issued a final written warning or dismisses the employee. The employer must be careful to note that the "consistency" rules apply in the main to the procedure followed.



"Consistency" does not necessarily mean that the same sanction must be applied in every instance of the same act of misconduct - it means that the same procedure must be applied in addressing similar instances of the same act of misconduct.



This is because usually, the sanction to be applied is decided according to the circumstances of the matter, and the personal circumstances of the employee, including matters such as service record and previous disciplinary record, plus various other mitigating, aggravating and extenuating circumstances. Thus, the act of misconduct can be the same, the evidence may even be the same or similar in two separate incidents of the same act of misconduct, but the circumstances can differ vastly.



As an example, the employer may have a rule in place stating that employees who are found sleeping on duty may be dismissed. Let us say that the employee who is employed to make the tea is found sleeping on duty in the kitchen. The circumstances of this transgression are not serious in any way.



However, if a security guard is found sleeping on duty, then that is another matter altogether, and the circumstances are vastly different. The employee found sleeping on duty in the kitchen has committed an offense, but it is not in any way serious.



The security guard found sleeping on duty has committed a very serious offense. Thus, both incidents will be addressed by following the same disciplinary procedure, but the sanction will differ vastly in each case.



Thus, an employee who really deserves to be dismissed for an offense, cannot claim an unfair dismissal based only on the fact that  in a previous case of a similar act of misconduct, the transgressor was not dismissed.



For more information contact

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Compensation for Occupational Injuries and Diseases Course

22 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

12 September 2019

Southern Sun: Maharani Towers: Durban

Employment Equity Committee Training

23 August 2019

Emperors Palace: Convention Centre

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play