There is no legal requirement on an employer to be more lenient during this period of lockdown due to the COVID 19 pandemic for minor forms of misconduct, or any form of misconduct for that fact. However, an employer must bear in mind other factors that will affect how misconduct is handled during this time – namely, the nature of the employment relationship, as well as the unprecedented situation that the country as a whole is facing due to the COVID 19 pandemic.
Taking this into consideration, it would be advisable for employers to take a more humanitarian and compassionate perspective/approach when evaluating and dealing with minor offences in specific. The purpose of disciplinary action is to correct and improve, and not to punish, work-related behaviour. It is also important for employers to note that each employee is expected to maintain standards of conduct as outlined by the company’s rules, regulations and policies which are in place – not only whilst working from the company’s premises, but also whilst working from home as a result of social distancing measures or the current lockdown regulations in place.
When an employee does not meet the standards set by their employer, it is the employer’s responsibility to institute with disciplinary procedures in order to address the employee’s behaviour.
An important issue that may arise from an employer taking disciplinary action against an employee during this unprecedented time is that of the substantive element of consistency when proving that an employee committed an offence. The law provides that an employer must enforce standards of conduct consistently.
One reason why we find this to be important for employers when dealing with action during the period of lockdown is that the circumstances and merits of each offence should be dealt with individually, and differentiated from misconduct committed prior to the lockdown commencing. The circumstances of the lockdown situation are not “natural” or conducive to the “normal” continuation of business, which is reason enough to take caution when dealing with misconduct committed during the lockdown period, compared to misconduct committed prior to this period in relation to how the principle of consistency is applied.
For example, although time-related offences are seen as minor offences in the workplace – should an employee have been issued with a final written warning for same prior to the commencement of lockdown, and the employee committed similar misconduct during the lockdown period – the circumstances and merits surrounding the misconduct, although similar, should be treated individually due to the “exceptional” circumstances of the lockdown and should be differentiated accordingly in relation to consistency.
It is not to say that an employer must be more lenient during this period, but an employer should be more considerate towards several other factors that may occur during this “out of the ordinary” period of time, and up until the lockdown period has ended.
The principle of consistency (also referred to as the ‘parity principle’) is referred to in Item 7 of the Code of Good Practice: Dismissal. “Consistency” does not necessarily mean that the same sanction must be applied in every instance of the same act of misconduct – it means that the same procedure must be applied in addressing similar instances of the same act of misconduct.
This is because usually, the sanction to be applied is decided according to the circumstances of the matter, and the personal circumstances of the employee, including matters such as service record and previous disciplinary record, plus various other mitigating, aggravating and extenuating circumstances. This would include various factors that may have only arisen during the lockdown period, for which an employer must consider. Thus, the act of misconduct can be the same, the evidence may even be the same or similar in two separate incidents of the same act of misconduct (prior to lockdown and during lockdown), but the circumstances can differ vastly – such as that of the lockdown period. Employers are thus advised to handle each case on its merits, bearing in mind the above-mentioned.
With reference to relevant case law: In Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (2017) – the Labour Appeal Court made it clear that “inconsistency” is not a rule unto itself, but merely one factor to be taken into account in the determination of an appropriate course of action. It is by no means decisive of the outcome on the determination of the fairness of the decision to dismiss. Therefore, if the chairperson finds that there was inconsistency in a particular case, that in itself does not mean the employee should be found not guilty or be given the same sanction as the person the employee compares herself to. In other words, the mere fact that an employer may have acted inconsistently does not necessarily mean that there was unfair treatment.
Inconsistent treatment may be an indication of unfairness, but this is not always the case. This can be directly applied to differentiate misconduct committed prior to the commencement of lockdown, and during this period – for which the employer may not be seen to have acted inconsistently when applying a different sanction for a similar offence – after taking the individual merits and circumstances of each case into consideration.
Therefore, the recommendation of leniency is not one which is to be applied retrospectively or indefinitely, but it is advised that it should be applied during this period of uncertainty, specifically during the current regulations of lockdown. Employers need to take note that there could be various circumstances in which similar misconduct may occur, however, the merits may be vastly different given the unprecedented lockdown and the effect it has on employees. This ultimately could influence how the substantive element of consistency is applied in the workplace, and could also subsequently influence the outcome of disciplinary action during this period of time – whether it be in relation to minor offences of employees working from home, or from the workplace itself.
Article by: Carl Ranger
Dispute Resolution Official – Bloemfontein