Disciplinary action must be fair to all parties

Bradley Workman- Davies

Bradley Workman- Davies

It often happens that employee misconduct is committed by more than one employee at the same time, or may involve a number of employees who have committed or been involved in misconduct in the workplace.

An employer must always remember that they have an obligation to treat all of these employees fairly, and that any disciplinary action which it takes against one or more of the employees involved will be subject to the scrutiny of the Commission for Conciliation, Mediation and Arbitration (CCMA) and Labour Courts for both substantive and procedural fairness.

In particular, Schedule 8 to the Labour Relations Act: the Code of Good Practice - Dismissals requires that -

"The employer should 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 misconduct under consideration."

In the recent case of Edgars Consolidated (Edcon) vs CCMA & others, an employee was dismissed for distributing an email to family and friends that was discriminatory and offensive to black people and Afrikaners.

When the matter went to the CCMA, the commissioner held that the circumstances in which this email had been distributed, the fact that the employee had pled guilty and shown remorse, meant that the employer's dismissal of the employee was too harsh. The CCMA commissioner overturned the dismissal and awarded reinstatement with a final written warning as a sanction.

One of the major issues which the commissioner took into account in making this award was the fact that the dismissed employee had in fact received the email from a black colleague in the same workplace.

The commissioner felt it unfair for Edgars to dismiss the employee who had distributed the email to non-work colleagues, while the employee who had in fact disseminated the email to work colleagues in the first place, including the employee who was dismissed, was not disciplined.

When the matter went on appeal to the Labour Court, the Labour Court also took this factor into account in finding that Edgars had acted unfairly towards the dismissed employee.

An employer, the court held, has an obligation to treat employees who are guilty of the same type of misconduct, in the same manner.

It was thus unfair for Edgars to discipline and dismiss one employee and not discipline the other when both had disseminated a racist and offensive email.

Employers must always ensure that when more than one employee is involved in misconduct that disciplinary action is taken against all of the employees who can be identified to have been involved, and that discipline is applied consistently in respect of all of these employees.

l Bradley Workman-Davies is senior associate at Werksmans