It is a substantive fairness requirement in respect of misconduct in the workplace [Schedule 8 to the LRA] that the disciplinary sanction must be appropriate and fitting for the particular infraction. Also, that the rules or standards must be consistently applied by the employer. But what does this mean in practice?
Introduction
On the most basic level, it means that the employer should not play favourites or act arbitrarily when (1) enforcing the rules; and (2) meting our appropriate disciplinary action for incidents of misconduct. Any decision relating to discipline must be justifiable on objective, operational grounds. It is really the perception of bias inherent in selective discipline which makes it unfair.
There are also two parts to this ‘consistency’:
Historical consistency – i.e. consistency over time, which requires that an employer applies a disciplinary sanction consistently with the manner in which it has been applied to other similarly situated employees in the past. The employer should not suddenly decide to be stricter in its enforcement of a rule or its sanction selection for the same behaviour.
This does however not mean that the employer may never change it approach to a particular type of misconduct – merely that employees should in all fairness be forewarned that this change is going to take place from a future date. This is generally be referred to as a ‘clamp down’.
Contemporaneous consistency – i.e. consistency between employees who committed the same infraction at the same time. BUT, this will only be applicable to situations where the circumstances of the infractions and those of the perpetrators are really essentially the same. It does not mean that the same sanction is required merely because the wording of a particular charge sounds the same. If the employer can demonstrate a legitimate basis for differentiation between the employees, this will not amount to inconsistency. More about this below.
While consistency is therefore an important element of substantive fairness relating to misconduct and workplace discipline, it is not absolute. The principle is designed to prevent unjustified selective punishment - not to compel the employer to mete out the same discipline to employees with different personal circumstances simply because they committed what looks like the same offence. As the court stated in Nyathikazi v Public Health & Social Development Sectoral Bargaining Council & Others (2021) 42 ILJ 1686 (LAC), consistency has its place in our labour laws and discipline should be applied in a fair, reliable and consistent fashion. This however does not mean that a particular form of misconduct will always attract the same sanction.
While employers should strive for consistency, each case needs to be decided on its own merits.
Each case on its own merits
Fairness is a value judgement to be determined in the circumstances of the particular case, and for that reason there is necessarily room for flexibility and the exercise of discretion will inevitably create the potential for some inconsistency. In SACCAWU & others v Irvin & Johnson [1999] 8 BLLR 741 (LAC) the Labour Appeal Court stated: “Where one is faced with a large number of offending employees, 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 a 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 the other employees. It would mean no more than that his or her assessment of gravity of the disciplinary offence was wrong. It cannot be fair that the other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair it is capricious, or induced by improper motives or, worse, by a discriminating management policy.”
The sentiment that a perpetrator of misconduct should not be allowed to escape the consequences of their actions merely on the basis of the consistency principle, has been echoed in NEHAWU obo Buqa v Department of Health (Western Cape) and Others [2022] ZALCCT 42. Especially, says the court, when the misconduct is serious or even criminal in nature, and the perpetrator can be expected to know what the likely consequences would be.
The parity principle should therefore not be applied to the exclusion of prevailing different circumstances of the offending employees; or the circumstances of the respective infractions and the impact thereof on the workplace. The Labour Court in Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others [2009] 11 BLLR 1128 (LC), stated that an inconsistency claim will fail where the 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 application of such differentiating grounds has been demonstrated in various cases over the years.
In EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273, the court held that it was acceptable to treat co-perpetrators differently depending on the extent of their participation to the misconduct.
The Labour Appeal Court held that a manager with specialised technical skills charged with dereliction of duties cannot be penalised the same as the subordinates whom he had to oversee. “As regards the dereliction of duties by his subordinates, if any acts of misconduct were to be proven against any particular individual, it remains plain that they had no managerial role and it is illogical to draw a comparison as contemplated by the factor of inconsistency. It would be a paradox if the appellant could legitimately invoke the failure of the very subordinates he was accountable to manage effectively to exonerate or mitigate his managerial neglect by managing them ineffectively.” [Mtshwene v Glencore Operations South Africa (Pty) Ltd (Lion Ferrochome) [2019] 3 BLLR 219 (LAC); National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC)]
The CCMA held that the dismissal of a manager who took a lot of alcohol from the company’s honesty bar home (while it was meant for consumption on the premises within specified hours only) was fair, despite the fact that an intern also doing it, was given a final warning. [Mhlanga / Drager SA [2020] 12 BALR 1303 (CCMA)]
What must/can employees do if they wish to claim inconsistency?
According to the court in Government Printing Works v Mathala N.O. and Others [2016] ZALCJHB 358, if an employee alleges inconsistency, that employee bears the onus of proving the employer’s inconsistent application of rules and/or sanctions. (1) Firstly, the employee must lay a basis to support his/her allegation, for example by providing the names of the comparator-employees as well as the circumstances of their situations. (2) Secondly, the employee must use an adequate comparator when alleging inconsistency, which means that the situations must be the same or similar enough to warrant such comparison and that the sanction be the same. (Whilst apples can be compared to apples, there are still green, yellow, red and pink apples!)
The court in Magumbo v Nkomati Joint Venture and Others [2015] ZALCJHB 309 even suggested that alleging names and penalties of other comparable offenders would not be sufficient without presenting a full record of the hearings which resulted in those employees receiving lesser sanctions – so that the full merits of the cases can be duly compared.
What must the employer do?
The most important consideration is that the employer must be able to motivate and justify each sanction decision and any differences between seemingly similar cases. Too often managers slavishly follow a company disciplinary matrix without having regard to the circumstances of the particular case. Defending their decision at the CCMA or a Bargaining Council by saying that they followed their Disciplinary Code, or that they “always dismiss” for a particular type of misconduct, is not going to be enough. The Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22 made it very clear that the arbitrator as a ‘reasonable decision maker’ has to apply its own sense of fairness in deciding whether a dismissal was fair, and that there is no obligation on said arbitrator to simply defer to the employer (or its disciplinary code) in this regard.
With this in mind, the key is for the employer to be able to explain each decision with reference to its business and the impact of the employee’s misconduct thereon in order to demonstrate that the sanction was appropriate. A balanced sanction in each case will take into consideration a whole basket of factors, including the (1) circumstances of the offence, (2) the circumstances of the employee, as well as (3) the interests of the employer and the other employees.
These could include, amongst others –
o the severity and consequences of the offence (e.g. personal injury, reputational harm, losses, disruption to business);
o the (operational) risk of continued employment of the employee;
o the message sent to other employees regarding misconduct of that nature (e.g. tolerance level for certain behaviour, or undermining of authority);
o (lack of) acknowledgement of wrongdoing / remorse on the part of the employee;
o seniority or specialist knowledge;
o the breakdown of the trust relationship (or not)
[See De Beers Consolidated Mines (Pty) Ltd v CCMA & Others [2000] 9 BLLR 995 LAC and Sidumo (supra)]
Conclusion
It should be clear that employers need to educate their staff in this regard and provide appropriate training and guidance to their managers to be able to apply these principles appropriately in-house, and also to successfully defend their decisions later if challenges arise. It is not prudent to have a rigid disciplinary code and leave managers and staff to interpret and use this as they see fit. It is an invitation for disputes and will undermine, rather than support, fairness in workplace discipline.
© Judith Griessel