One of the aspects that need to be considered when determining whether a dismissal for misconduct is unfair or not, is whether the rule or standard that was breached is applied consistently by the employer.

Dismissed employees will often argue that another employee has committed the same misconduct yet was not dismissed.

In Choleta v Trek Engineering (Pty) Ltd 1992 13 ILJ 219 (IC), it was held that it would be unfair to dismiss an employee for an offence which the employer has habitually or frequently condoned in the past. In Cape Town City Council v Mashito (2000) 21 ILJ 1957 (LAC), it was held that it is, in general, unfair to impose different sanctions on employees found guilty of similar misconduct.

To succeed in a challenge for inconsistency, an employee must lay a credible basis for the claim. If such a challenge is not specifically raised, the employer has no general onus to prove that it has treated the employee consistently. Where the employee lays a credible factual basis for a claim of inconsistency, or where it is common cause, that other employees had been treated differently, the onus would be on the employer to provide a plausible explanation.

Once an applicant has laid this basis, the employer party will have to present evidence as to why the applicant’s case cannot be compared to the circumstances of another employee.

In Southern Sun Hotel Interest (Pty) Ltd v CCMA and Others (2009) 11 BLLR 1128 (LC), the court held that an inconsistency claim would fail where the employer is able to differentiate between employees who committed similar transgressions of inter alia, differences in personal circumstances, the severity of the misconduct or on the basis of other material factors.

The employer may also lead evidence that it was not aware that the employee / the applicant is comparing him/herself to committed misconduct and therefore could not have disciplined that employee.

Article by: Ruaan Heunis
Dispute Resolution Official – East London