11 November 2022
We are often faced with workplace misconduct where the employer has treated similar acts of misconduct by employees differently.
Consistently applying disciplinary actions and sanctions for the same or similar acts of misconduct is paramount for appropriate corrective action. Failing which, the employer is placed at severe risk.
Item 7 of Schedule 8, The Code of Good Practice, defines misconduct as:
- A contravention of a rule or standard regulating conduct in the workplace;
- Which rule or standard should be valid and reasonable;
- The employee should be aware or reasonably expected to be aware of the rule; and
- The employer should have consistently applied the rule or standard to all previous employees who contravened the same rule or standard.
Case Study
On review in Lonmin Mine v CCMA (JR1084/21), the Labour Court was tasked to establish if a dismissal was substantively unfair due to the alleged inconsistent application of discipline. The employee was dismissed for sleeping on the job and alleged that the misconduct had not been sanctioned by the employer in the past. The Labour Court upheld the review and found that a plea of inconsistency should be “sparingly upheld” by Arbitrators when raised and that “the raising of inconsistency cannot automatically come as a bar to the imposition of dismissal”.
The Court in their finding referred to the decision in Comed Health CC v National Bargaining Council for the Chemical Industries (2012) 33 ILJ 623 (LC) which held that ‘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 evaluating the fairness of 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.
This means that various sanctions do not automatically lead to the conclusion that the dismissal was unfair. The fairness of the dismissal has to be determined based on whether the employer acted unfairly in imposing differential sanctions.
Where there is an allegation of discipline being applied inconsistently by an employer, the employee alleging the inconsistency is required to lay a credible basis for the claim, with the employer than having the onus of rebutting the allegation of inconsistency.
In the case of Capitec Bank v CCMA & Others (DA5/2019) [2020] (LAC) the Labour Appeal Court repeated the established principles relating to inconsistency as follows: “Historical consistency requires that an employer applies a penalty consistent with the manner in which it has been applied to other similarly situated employees in the past. Contemporaneous consistency requires that a penalty be applied consistently between two or more similarly situated employees who commit the same misconduct. Where an employer shows a legitimate basis to differentiate between employees, whether due to their seniority, personal circumstances, the severity of the misconduct or other material factors, no inconsistency will have been proved.”
Item 3(5) of the Code of Good Practice reads, “when deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employees ‘circumstances, the nature of the job and the circumstances of the infringement itself.”
From the above, it is clear that item 7 of the Code cannot be applied blindly in isolation; in certain instances, when imposing a particular sanction, consistently applying a rule is not a “one size fits all” concept. The determining factor is the requirement of fairness and a valued judgement, considering all the relevant circumstances.
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