It is of the utmost importance that every employer has a reasonable and lawful disciplinary code and applies it consistently. (The importance of a reasonable and lawful disciplinary code will be discussed in another CEO SA article.)
Where an employer may go wrong is in some attempt to distinguish between employees who commit the same form of misconduct. For example, employee “A” may be guilty of a particular form of misconduct, but no disciplinary action has been taken against them; on the other hand, when employee “B” commits the same form of misconduct as employee “A”, they are dismissed. In some circumstances, employee “A” could also receive a lesser sanction than employee “B”. In these circumstances, employee “B” may refer a matter to the CCMA due to this potential inconsistency. Still, there may also be a legitimate difference between the offences that warrant a lesser sanction or a “not guilty” finding. However, should an employer be unable to prove that they have acted consistently, they bear the risk of a potential adverse award.
For employers not to fall into this trap, the following is essential to note:
- The “consistency principle” requires that employers impose consistent sanctions on employees who are found guilty of the same misconduct. Item 3(6) of Schedule 8 of the Code of Good Practice: Dismissal (Code) provides that:
“The employer should apply the penalty of dismissal consistently with how it has been applied to the same and other employees in the past, and consistently between two or more employees who participate in the misconduct under consideration”.
- At the arbitration proceedings, the presiding commissioner must decide on the issue of consistency if it is raised by the employee (applicant).
- If an employee alleges inconsistency, that employee bears the onus of proving the employer’s inconsistent application of the rules and sanctions. They must, for example, provide the names of the employees as well as the circumstances of the alleged situations.
- The employee must use an adequate comparator when alleging inconsistency, which means that the two situations must be identical or similar enough to warrant such a comparison and that the sanction is the same.
With the above in mind, the employee cannot hide behind the fact that the burden of proof is on them. Not comparing apples with oranges is of the utmost importance. Yes, each employee is an individual. However, all employees should be disciplined consistently when they are found guilty of the same misconduct. Apples and oranges are different fruits, but when placed in the same bowl, they should be treated the same. Who the employee is, their circumstances, or the employer’s likeability of each employee should not play a role when employees commit misconduct and are found guilty of the same misconduct.
Article By: Tammy Koekemoer
Dispute Resolution Official – CEO Bloemfontein