Disciplinary action should be consistent

The Labour Court had occasion to consider and to pronounce itself on the parity principle or the principle of disciplinary consistency. This principle is based on the understanding that, with "all things being equal", it is unfair for an employer to dismiss an employee for an offence that the employer has habitually or frequently condoned in the past, or to dismiss only some of many employees guilty of the same infraction (contemporaneous inconsistency).

The Labour Court had occasion to consider and to pronounce itself on the parity principle or the principle of disciplinary consistency. This principle is based on the understanding that, with "all things being equal", it is unfair for an employer to dismiss an employee for an offence that the employer has habitually or frequently condoned in the past, or to dismiss only some of many employees guilty of the same infraction (contemporaneous inconsistency).

The principle of fairness is a cornerstone of labour relations. A greater onus is thus placed on an employer who treats employees differently to explain the reasons for doing so.

In the case of the National Union of Metalworkers South Africa (NUMSA) and Hendred Fruehauf Trailers 44 employees were dismissed because they took part in a nationwide go-slow along with 2000 colleagues based at other branches. The 44 dismissed employees were all employed at the same branch and were dismissed simply because the effects of the go-slow on their plant could be monitored with relative ease, and the workshop in which they where employed was critical to the functioning of the business. The Labour Appeal Court found that the dismissal of the employees was unfair and unjustified because they were arbitrarily selected for dismissal. The court stated that employees who hac misbehaved in the same way should be punished in the same manner.

The disciplinary context often demands that the employer is flexible and considers a variety of factors before imposing a sanction. The NUMSA and Hendred case further highlights the fact that although an employer is expected to be flexible and to look at the employee's personal circumstances and the merits of the case, parity should always be the overriding consideration.

In the Southern African Clothing and Textile Workers' Union (SACTWU) and others v Novel Spinners, the employer, when dismissing employees engaged in an unprotected strike, took into account the fact that each employee had received a final written warning for individual absenteeism. The court held that the dismissals were unfair because it was unfair to take into account individual warnings for an individual misconduct when considering a collective misconduct. The court also held that where an individual breaks a workplace rule, it is his/her decision alone but different pressures apply when the individual acts as part of a group.

In South African Commercial, Catering and Allied Workers' Union (Saccawu) and others v Irvin and Johnson, the employees who had previously received written warnings were dismissed because they took part in violent demonstrations during an illegal strike. The court noted that the best that an employee could expect from an employer is reasonable consistency when he or she is one of a number of offending employees.

A decision can only be fair if it is not "capricious or induced by improper motives or, by discriminating management policy". However, inconsistency in the application of the employer's rules would not be automatically unfair. It therefore becomes necessary for an employee to establish that the inconsistency is arbitrary and not based on a fair reason. - Lavery Modise is a director at Routledge Modise Attorneys. He was assisted by Sibongile Mashinini, a candidate attorney at Routledge Modise Attorneys.

X