In Workplace Law 12th Ed. John Grogan writes that one of the general requirements for a fair dismissal is consistency. For many years now, the labour courts have stressed the principle of equality of treatment of employees, the “parity principle”.
What this essentially means, is that it would be unfair for an employer to dismiss a particular employee for a specific offence, which the employer has frequently condoned in the past (historical inconsistency), or to dismiss only some of a number of employees guilty of the same misconduct (contemporaneous inconsistency.)
During an arbitration for a dismissal related to misconduct, an employee will need to lay a credible basis in order to succeed with the claim of inconsistency. If the employee succeeds with laying a credible factual basis for a claim of inconsistency, it will then fall to the employer to offer an adequate explanation as to why.
The problem that employers could potentially face arises when an aggrieved employee contends that he or she was dismissed for committing a specific misconduct that did not result in dismissal in the past. An employer cannot be held accountable for inconsistency if he or she is unaware of the previous misconduct which has been referred to.
Further to this, where a decision that an employer made in the past to condone misconduct was simply wrong, the employer cannot be bound to continuously make this error for the sake of consistency. We would, however, advise that when this situation arises, that an employer clearly informs employees that this type of misconduct will not be condoned in future by way of an internal memo or during an internal minuted meeting.
The parity principle will also not be applicable where there are justified reasons for distinguishing between a number of employees and the disciplinary actions taken against them, where, for example, a senior manager who is dismissed for gross negligence, raises inconsistency because his or her subordinates were not dismissed for the same offence.
In the recent case of JDG TRADING (PTY) LTD T/A SUPPLY CHAIN SERVICES, MYHILL, E L N.O THE COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION SOLIDARITY OBO AS SCHLEBUSCH CASE NO: JR958/16, following a CCMA commissioner’s award for the reinstatement of an employee whose dismissal was found to be unfair based on the fact that the employer had been historically inconsistent, the Labour Court held that consistency is only a factor to consider when determining the fairness of a dismissal. It further held that failure by managers to take disciplinary action over a period of time does not automatically render dismissal unfair if disciplinary action is taken at a later stage, based on a continued breach. It is up to the employee to illustrate that the employer’s failure to take disciplinary action resulted in inconsistency which rendered the dismissal unfair. The Labour Court, in this instance, found that dismissal was indeed fair.
Each case, however, will be assessed on its own merits and employers should endeavour to be as consistent as possible when it comes to disciplinary action against employees, in order to avoid any potential adverse arbitration awards.
An employer should ensure that reasons for taking action or not taking action are recorded in order to keep a thorough record of decisions and the justifications thereto.
Article by: Wesley Field
Dispute Resolution Official – Bloemfontein