Ross Hendriks | SchoemanLaw IncCategory: Employment Law

In the realm of workplace discipline, consistency and its counterpart, inconsistency, play pivotal roles in the fair and equitable administration of disciplinary action. To fully grasp the requirement of consistency, one must move beyond simplistic definitions and explore the practical implications of treating “like with like” while ensuring fairness across similar cases of misconduct.

Understanding Consistency in Discipline

Consistency in workplace discipline entails applying the same standard across comparable situations. This principle ensures that employees committing similar acts of misconduct are treated in a like manner. However, it is crucial to differentiate between procedural consistency and uniformity in sanctions. While similar disciplinary processes should be followed, outcomes may vary depending on specific circumstances.

Types of Inconsistency:

1. Historical InconsistencyThis occurs when similar acts of misconduct in the past were addressed differently. For example, if prior incidents of a particular misconduct resulted in verbal warnings, but a similar case now leads to dismissal, this may indicate historical inconsistency.

2. Contemporaneous InconsistencyThis refers to treating employees differently for the same misconduct occurring simultaneously. For instance, if multiple employees participate in collective misconduct but only some face disciplinary action or varying sanctions, it constitutes contemporaneous inconsistency.

The Courts’ Perspective on Consistency

South African courts have addressed inconsistency in disciplinary matters, especially contemporaneous inconsistency. Recent Labour Court judgments, such as NUMSA on behalf of Members v Murray & Roberts Ltd and NUMSA on behalf of Maseko and Others v AMT Africa Recruitment (Pty) Ltd, highlight that inconsistency alone does not render a dismissal unfair. Instead, it is one of several factors considered when assessing fairness in disciplinary action.

• In Murray & Roberts Ltd, the court upheld distinctions between employees during an unprotected strike based on their actions and participation levels.
• In AMT Africa Recruitment (Pty) Ltd, differentiation between employees who resumed full production and those continuing a go-slow was deemed reasonable.

These cases underscore the importance of comparing similar situations and ensuring that any differentiation is not arbitrary or motivated by improper considerations.

Balancing Consistency and Fairness

While consistency is central to fairness, it is not absolute. The Labour Relations Act’s Code of Good Practice: Dismissal stresses the need for consistency in disciplinary rules but allows for variations in sanctions depending on the circumstances. Factors influencing disciplinary outcomes include:

• Severity of the offence: The potential harm caused by the misconduct.
• Employee circumstances: Considerations such as service record, disciplinary history, and mitigating factors.
• Operational considerations: Risks posed by continued employment, business impact, and the trust relationship.

For example, an employee sleeping on duty in a low-risk role (e.g., kitchen staff) may face a lighter sanction than a security guard whose misconduct jeopardises safety and security. Procedural fairness must be upheld in both cases, but sanctions may vary due to differing circumstances.

The Burden of Proof in Inconsistency Claims

Employees alleging inconsistency bear the burden of establishing prima facie evidence. This includes:

• Identifying comparable employees.
• Detailing their circumstances.
• Demonstrating differential treatment.

Employers must justify decisions by referencing business needs and the specific impact of misconduct. In Government Printing Works v Mathala N.O. and Others, the court highlighted the necessity of adequate comparators and detailed disciplinary records. Merely citing names or penalties is insufficient to prove inconsistency.

Practical Implications for Employers

To minimise risks of perceived inconsistency, employers should:

1. Establish clear disciplinary codesEnsure that rules and procedures are well-defined and consistently communicated.

2. Document decisions meticulouslyMaintain detailed records of disciplinary processes and justifications for sanctions.

3. Consider individual circumstancesEvaluate mitigating and aggravating factors to ensure fair and appropriate outcomes.

4. Train managersEquip managers with skills to apply disciplinary codes consistently and fairly.

Conclusion

Consistency in workplace discipline fosters fairness, enhances trust, and minimises disputes. However, consistency does not equate to rigidity. Employers must balance uniform procedures with nuanced sanctions that reflect the unique circumstances of each case. As South African labour jurisprudence evolves, it underscores the principle that fairness, rather than mere uniformity, remains the ultimate standard in disciplinary matters.

Ross Hendriks | SchoemanLaw IncAttorneyEmployment Law Services