Discipline: treating like cases alike

An employer must apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past and consistently as between two or more employees who participate in the type of misconduct concerned.

An employer must apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past and consistently as between two or more employees who participate in the type of misconduct concerned.

This is one of the essential requirements of a substantively fair dismissal, the principle of consistency or the so-called parity principle.

This has been described as a basic tenet of fairness which requires that like cases should be treated alike.

Inconsistent treatment of like cases often produces, in the minds of interested and impartial observers, a perception of unfairness and possibly one of bias or ulterior purpose.

It is for this reason, therefore, that the explanation of the differentiation is essential if the different sanctions are both to survive.

In other words, an employer may not be guilty of inconsistency if he or she is able to differentiate between the two acts of misconduct or the actors involved.

Evidence must be led by an employer to justify why employees were treated differently.

The reasons for differentiation should be sound and reasonable ones. However, the emphasis must fall on like cases.

In terms of Item 3(5) together with Item 3(6) of Schedule 8 of the Code of Good Practice on Dismissal it is apparent that despite the parity principle, employers must take into account the particular circumstances of each employee when deciding on a sanction.

An employer may be justified in differentiating between employees found guilty of the same offence on the basis of differences in the personal circumstances of each of the employees (such as length of service and disciplinary record) or the merits (such as the roles played in the commission of the misconduct).

Consistency is simply an element of disciplinary fairness.

Every employee must be measured by the same standards.

It is really the perception of bias inherent in selective discipline which makes it unfair.

Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is unfortunately the price to be paid for flexibility which requires the exercise of discretion in each individual case.

In Cape Town City Council vs Masitho and others (2000) 21 ILJ 1957 (LAC) the court was confronted with a case where an employer had dismissed some employees, but issued a warning to another employee who was involved in the same disciplinary infraction.

The court stated that, in the absence of material distinguishing features, equity would generally demand parity treatment.

Fairness is a value judgment to be determined in the circumstances of the particular case and for that reason there is necessarily room for flexibility, but where two employees have committed the same wrong and there is nothing else to distinguish them, their misconduct ought to be dealt with in the same way.

Without that, employees would inevitably and justifiably consider themselves to be wronged in circumstances where there is a perception of bias.

- Lavery Modise is a director, and Sicelo Mngomezulu, an associate at Routledge Modise in association with Eversheds

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