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Consistency as an element of fairness in dismissal is nothing new. Yet it is something that is often misunderstood. Consistency relates to the requirement that offences, or acts of misconduct, should be treated alike, and different cases treated differently.  This principle is also sometimes referred to as the parity principle. Whilst it is important to be consistent, this should not be confused with being rigid.

The requirement that an employer must act consistently when dismissing an employee for misconduct was codified in Item 7 of the Code of Good Practice: Dismissal which states that when deciding whether a dismissal for misconduct is substantively fair an arbitrator must consider whether the relevant ‘rule or standard has been consistently applied by the employer’.

According to Item 3, ‘[a]n employer’s rules must create certainty and consistency in the application of discipline’ and 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’.

In disciplinary proceedings, employees often use inconsistent treatment as a defence. Inconsistency can be either historical or contemporaneous. Historical inconsistency occurs when an employer who has never dismissed an employee for a specific offence in the past decides to do so without due notice. Contemporaneous inconsistency happens when only some employees are disciplined for the same offence, whilst others are not, or when all are disciplined, but only some are dismissed. It is generally considered unfair to treat similar offences differently.

At the outset, while employers bear the onus of proving that a dismissal was fair, it must be accepted that there is a burden on employees to present at least prima facie evidence of inconsistency to which the employer must respond. 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. 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. 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.

In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 452 (LC); [2009] 11 BLLR 1128 (LC) the court made the following useful observations: ‘A claim of inconsistency (in either historical or contemporaneous terms) must satisfy a subjective element — an inconsistency challenge will fail where the employer did not know of the misconduct allegedly committed by the employee used as a comparator…. The objective element of the test to be applied is a comparator in the form of a similarly circumstanced employee subjected to different treatment, usually in the form of a disciplinary penalty less severe than that imposed on the claimant… Similarity of circumstance is inevitably the most controversial component of this test.’

The employer on the other hand 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 (1) the 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 –

• the severity and consequences of the offence (e.g. personal injury, reputational harm, losses, disruption to business);
• the (operational) risk of continued employment of the employee;
• the message sent to other employees regarding misconduct of that nature (e.g. tolerance level for certain behaviour, or undermining of authority);
• (lack of) acknowledgement of wrongdoing/remorse on the part of the employee;
• seniority or specialist knowledge;
• 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)].

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.

In summary, mere inconsistency in sanction is not enough to allow other employees to profit from it. The inconsistency must be capricious or induced by improper motives to be unfair. Employers must however be vigilant and avoid inconsistency in sanction.