A term often heard in the context of applying discipline in the workplace is the word “consistency” or its opposite, “inconsistency.”
The term “consistency” should be seen as “treating like with like” or “measuring all by the same standard”. In other words, it would be unfair to treat people who have committed similar acts of misconduct differently. The primary reason for requiring Employers to act consistently when instituting disciplinary action or administering disciplinary sanctions is to ensure they do not act arbitrarily.
“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 the sanction to be applied is decided according to the specific circumstances of the matter and the Employee’s personal circumstances. This includes service records, previous disciplinary records, and various mitigating, aggravating, and extenuating circumstances. Thus, the act of misconduct can be the same, and the evidence may even be the same or similar in two separate incidents of the same act of misconduct, but the circumstances can differ vastly.
The principle of consistency (also referred to as the ‘parity principle’) is referred to in Item 7 of the Code of Good Practice: Dismissal. This principle has been affirmed in numerous decisions of the Labour Court, most recently again in Eskom Holdings SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1372/14)  ZALCJHB 110 (13 March 2018). This case involved what is referred to as ‘historical’ consistency, i.e., an Employee accused of misconduct claimed that someone else, who once had been in a comparable situation as the Employee, was treated more leniently or was never charged. ‘Contemporaneous’ inconsistency, again, refers to a situation where an Employee involved in the same act of misconduct as another Employee or a group of Employees claims that they were being singled out for disciplinary action. This contribution only deals with alleged historical inconsistency.
Ultimately, the steps an Employer must take to ensure consistency in practice are pre-emptive steps to reduce risk and liability. Therefore, before a sanction is given, the following questions should be asked:
- Can you prove, with evidence, that the Employee violated a rule, or is there a standard of performance that was not met, and have you treated similar situations with the same level of discipline in similar circumstances?
- Have you disciplined others for this general rule violation or performance deficiency?
- Have you failed to discipline anyone for the same rule violation or performance deficiency, even though some other Employees may have been disciplined for it?
- Has the level of discipline imposed been substantially the same for the same violation or performance deficiency for other Employees?
- Have you spoken to and documented the low performance with the specific Employee?
Additionally, there are a few actions an Employer may take to ensure there is consistency in disciplinary practices, including:
- Keeping proper documentation of coaching conversations, written disciplines, and performance evaluations.
- Implement written policies highlighting consequences for specific behaviours.
- Provide all Employees and managers training to ensure they understand how to be consistent in practice and with the company’s policies, procedures, guidelines, code of conduct, and Employee guidebook.
- Investigate before determining any action to understand precisely what happened and who was involved. This will ensure that proper action is taken against all parties involved and that no Employees are singled out.
It is important to note that inconsistency is not necessarily unfair. Suppose, for example, that the allegations are severe and that the chairperson who conducted the first hearing made a mistake in good faith, e.g., issuing a final written warning for something that would ordinarily justify dismissal in terms of the Employer’s policy. 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 considered 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 inconsistency in a particular case, that does not mean the Employee should be found not guilty or be given the same sanction as the person the Employee compares themself 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 indicate unfairness, but this is not always the case.
It may happen that during a hearing, an Employee alleging inconsistency refers to alleged misconduct by another Employee of which the Employer has no knowledge. While the Employer ought to investigate this incident as best it can, the fact that no action was taken against the person referred to will not amount to inconsistency if the Employer had no knowledge of it.
Thus, an Employee who deserves to be dismissed for an offence cannot claim an unfair dismissal based only on the fact that in a previous case of a similar act of misconduct, the transgressor was not dismissed.
Article by Marco Horak
Dispute Resolution Official – Cape Town