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Consistency in workplace discipline is not merely an HR preference, but a central component of fairness in South African labour law. For employers and HR practitioners, inconsistency in disciplinary action can turn an otherwise defensible dismissal into a substantively unfair one.

Section 188 of the Labour Relations Act (LRA) provides that a dismissal is unfair if the employer cannot prove a fair reason related to conduct, capacity or operational requirements, and a fair procedure. It also requires decision-makers to consider any relevant code of good practice issued under the Act.

In the disciplinary context, inconsistency generally means that employees who commit the same or similar misconduct are treated differently without a fair and objective reason. This is often referred to as the “parity principle”, which is based on the idea that like cases should be treated alike. The former Schedule 8 Code of Good Practice: Dismissal expressly required employers to apply the penalty of dismissal consistently with how it had been applied to the same and other employees in the past, and consistently between employees who participated in the misconduct under consideration. Although Schedule 8 has since been repealed by the 2025 Code of Good Practice: Dismissal, the new Code continues to deal expressly with misconduct, fair sanctions, consistency, fair procedure, and disciplinary records.

The Parity Principle: What Inconsistency Means

The courts have recognised two main forms of inconsistency:

• Historical inconsistency arises where an employer has, in previous comparable cases, imposed a more lenient sanction or taken no disciplinary action at all.
• Contemporaneous inconsistency arises where two or more employees are involved in the same or similar incident, but the employer does not discipline all involved, or imposes materially different sanctions.

Both forms may undermine the fairness of a dismissal because they create the impression that discipline is arbitrary, selective, or biased.

Consistency is important because substantive fairness is concerned not only with whether the employee committed misconduct, but also with whether dismissal was an appropriate sanction in all of the circumstances. A rule may be valid, the employee may have breached it, and the misconduct may be serious, but the employer must still show that dismissal was a fair and proportionate response. The updated Code of Good Practice: Dismissal reinforces this approach by requiring attention to misconduct, disciplinary measures, as well as guidelines for fair sanction, consistency, and disciplinary records.

Lessons from Case Law

The Labour Appeal Court (LAC) has repeatedly stressed the importance of consistency. In Gcwensha v CCMA & Others [2006] 3 BLLR 234 (LAC), the Court stated that “disciplinary consistency is the hallmark of progressive labour relations” and that employees must be measured by the same standards. However, the Court also emphasised that a proper comparison requires attention to the gravity of the misconduct and the employees’ respective disciplinary records. This means that consistency does not require mechanical uniformity, but rather a fair comparison between employees who are genuinely similarly situated.

This distinction is important. Employers are not automatically guilty of unfairness simply because two employees who breached the same rule received different sanctions. In Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others [2009] 11 BLLR 1128 (LC), the Labour Court held that an inconsistency claim may fail where the employer can distinguish between employees on objective grounds, such as different personal circumstances, the severity of the misconduct or other material factors. Legitimate differentiating factors may include length of service, disciplinary record, seniority, degree of involvement, whether the employee was honest during the investigation, whether remorse was shown, and the actual or potential harm caused by the misconduct.

The LAC’s decision in NUM and Another v Amcoal Colliery t/a Arnot Colliery and Another [2000] 8 BLLR 869 (LAC) is also instructive. The Court explained that the parity principle is intended to prevent unjustified selective punishment or dismissal, and to ensure that like cases are treated alike. At the same time, it was not intended to force an employer to impose identical sanctions on employees whose personal circumstances or levels of culpability differ. In practice, this means that HR should avoid both extremes i.e. arbitrary inconsistency on the one hand, and rigid one-size-fits-all discipline on the other.

The courts have also cautioned that consistency is not an absolute rule. In SACCAWU and Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC), the LAC held that consistency is an element of disciplinary fairness, but “not a rule unto itself”. The Court recognised that some inconsistency may result from the exercise of discretion in individual cases, and that employees should not necessarily benefit from a previous wrong or overly lenient decision unless that decision was capricious, improperly motivated or discriminatory. This is a valuable reminder for employers: Past mistakes do not have to be repeated, but departures from past practice must be explainable and fair.

Building Consistency into the Disciplinary Process

For employers and HR practitioners, the practical lesson is that consistency must be built into the disciplinary process before a dispute arises. Employers should maintain clear disciplinary rules, ensure that managers understand those rules, keep proper disciplinary records, and record the reasons for sanctions imposed.

The new Code of Good Practice: Dismissal specifically includes disciplinary records as part of its misconduct framework, which reinforces the importance of being able to show how similar matters were dealt with previously.

Questions to Ask Before Deciding on Sanction

When deciding on sanction, the chairperson or decision-maker should ask whether similar misconduct has occurred before, how those cases were handled, whether the employees are genuinely comparable, and whether any differences justify a different outcome. If a comparator is raised by the employee, the employer should investigate it rather than dismissing the allegation out of hand. Where differentiation is justified, the reason should be stated clearly in the outcome. A well-reasoned sanction that explains why one employee was dismissed while another was not, is far more defensible than a bare conclusion that “dismissal is appropriate”.

The Wider Cost of Selective Discipline

Consistency also supports workplace trust. Employees are more likely to accept discipline – even serious discipline – if they believe that rules are applied evenly and without favouritism. Conversely, selective discipline weakens managerial authority, damages morale, and increases the risk of Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining council challenges.

In unfair dismissal proceedings, the employer bears the burden of proving fairness once dismissal is established, and inconsistency can make that burden difficult to discharge.

Putting Consistency into Practice

Ultimately, consistency is about disciplined decision-making. It does not prevent employers from taking firm action against misconduct, and it does not require employers to ignore aggravating or mitigating circumstances. It requires employers to apply the same standards to comparable employees, to justify any differences objectively, and to keep records that prove the decision was reasoned rather than arbitrary.

For HR practitioners, the safest approach is to treat consistency as part of substantive fairness from the outset, not as an afterthought once an unfair dismissal dispute has been referred.