Craig Bosch “Consistency as an element of fairness”
COGP: Dismissal Item 3: ‘an employer’s rules must create certainty and consistency in the application of discipline’; ‘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.’ Item 7: ‘rule or standard has been consistently applied by the employer.’
'In my view too great an emphasis is quite frequently sought to be placed on the 'principle' of disciplinary consistency, also called the ''parity principle' There is really no separate 'principle' involved. Consistency is simply an element of disciplinary fairness... Every employee must be measured by the same standards... Discipline must not be capricious. It is really the perception of bias inherent in selective discipline which makes it unfair’ – SACCAWU v I&J (LAC)
‘Disciplinary consistency is the hallmark of progressive labour relations and the 'parity principle' merely requires that every employee must be measured by the same standards. Discipline must also not be capricious nor should there be any perception of bias. When comparing employees care should be taken to ensure that the gravity of the misconduct is evaluated and the discipline record of the two employees compared. No extraneous matters should be regarded and a comparison has to be made between all the relevant features that are normally considered when one employee is disciplined.’- Cape Town City Council v Masitho (LAC)
‘A claim of inconsistency (in either historical or contemporaneous terms) must satisfy a subjective element – an inconsistency challenge will fail where the employer did not know of the misconduct allegedly committed by the employee used as a comparator... The objective element of the test to be applied is a comparator in the form of a similarly circumstanced employee subjected to different treatment, usually in the form of a disciplinary penalty less severe than that imposed on the claimant... Similarity of circumstance is the inevitably most controversial component of this test. - Southern Sun Hotel Interests (Pty) Ltd v CCMA (LC)
What degree of difference? ‘in the absence of material distinguishing features equity would generally demand parity of treatment.’ – Cape Town City Council v Masitho a ‘basis on which to legitimately differentiate.’ – CEPPWAWU v Metrofile (Pty) Ltd the ‘reasons for differentiation should be sound ones’ - Rustenburg Platinum Mines Ltd (Bafokeng Rasimone Platinum Mine) v CCMA & others
What degree of difference? ‘valid ground to distinguish one case from another.’ – Samson v CCMA CCMA Misconduct Arbitration Guidelines: – ‘[u]nless the employer can provide a legitimate basis for differentiating between two similarly placed employees, a disparity in treatment is unfair. – ‘is not inconsistent to treat employees charged with the same misconduct differently if there is a fair and objective basis for doing so. This may include mitigating factors, aggravating factors or relevant aspects of the employee’s disciplinary record.’
Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & others – Dismissed employee orchestrated a plan to misappropriate the employer’s goods and showed no remorse whereas the fellow employee had admitted guilt and apologised. Nedbank v CCMA – Gravity of misconduct and employee’s seniority rendered her situation different
Cape Town City Council v Masitho - one employee had not supplied a false explanation for abandoning his shift whereas his colleagues had lied by saying that they had been ill. The LAC found that this was not a material distinction justifying different treatment.
Changing policy National Union of Metalworkers of SA on behalf of Johnson and Trident Steel (Pty) Ltd Cape Town City Council v Masitho ‘I hasten to add that the fact that consistency is called for from the appellant does not mean that, having adopted one course in the past, it is forever bound to adhere to it. The value of consistency is that employees are entitled to expect that like cases will be dealt with alike, but they can have no complaint if they are told clearly in advance that a former practice will no longer be adhered to.’
Changing policy Consani (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others ‘The requirement of consistency is not a hard and fast rule. It is something to be kept in mind as an aspect of disciplinary fairness. Flexibility in adapting to a changing environment is equally important. Shifts in policy inevitably introduce standards not consonant with past practices. The applicant's change in policy to one of zero tolerance hence can be fairly regarded as a legitimate modification of the operational means for protecting the company from ongoing stock losses. Any ensuing element of inconsistency cannot be considered arbitrary or in bad faith in the circumstances.’
The strike context ‘in general terms, the nature and extent of prior sanctions can legitimately form the basis of a differentiation in penalty, even when the nature of the misconduct differs. An exception applies when the employer considers an appropriate sanction for misconduct that is collective in nature. In this instance, prior disciplinary sanctions for individual misconduct cannot be used to justify a differentiation in penalty. The employer has no choice but to impose the same sanction in respect of all employees engaged in the collective misconduct. However commercially compelling the considerations to which Mr Myburgh referred in his evidence may have been at the time, they were not a legitimate basis on which to select for dismissal only those employees whose disciplinary records disclosed final warnings for acts of misconduct.’ – SATAWU v Ikhwezi Bus Service (Pty) Limited
The strike context ‘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 the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision.
The strike context In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy... Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. The point is that consistency is not a rule unto itself.’ – SACCAWU v I&J
Can an arbitrator make a finding of inconsistency, and thus substantive unfairness where dismissal is obviously an appropriate sanction?
In summary: an employer must treat like alike or stand accused of inconsistency. It may distinguish between employees with reference to objective factors that are sufficiently significant. Each case must be determined on its own merits, but examples of factors which would justify different treatment include: a changed working or business environment, remorse, admission of guilt, previous disciplinary record, seniority, the gravity of the misconduct, the fact that an employee played a leadership role in the misconduct. This is obviously not a closed list.
Proving inconsistency: burden on employees to present at least prima facie evidence of inconsistency to which the employer must respond. It is not sufficient to simply allege inconsistency and then expect the employer to present a case showing that it has acted consistently