The notion of fairness is based on the principle of equal treatment for equal conduct. The equivalent principle in labour law is that the employer must be consistent in its application of discipline. This means it must consider how other employees in similar circumstances have been treated when deciding how to discipline another employee.
The LRA stresses the need for consistency in various contexts. A pertinent reference is in item 2 (1) of the Dismissal Code of Good Practice which reads as follows-
“…the employer should apply the penalty of dismissal with the way in which it has been applied to the same and other employees in the past, and consistently between two or more employees who participate in the misconduct under consideration.”
A dismissal which would otherwise have been fair may be found to be unfair purely because the sanction of dismissal was inconsistent with the sanctions imposed on other employees for the same or similar offences in the past.
So how does an employer distinguish between past and new cases to avoid accusations of inconsistent discipline?
The Labour Appeal Court recently provided the following useful guidelines on how to make the distinction–
- There must be sound reasons to distinguish one case from another.
- Sound reasons may include-
- the magnitude of the offence;
- the employee’s past record and length of service;
- the nature of the employee’s job;
- the employees’ level of seniority;
- the employee’s personal circumstances in relation to his or her work;
- the particular circumstances of the case, for example whether it involved remorse, provocation, coercion, racist language or dishonesty.
TIP: An employer should check how it has dealt with similar cases in the past. If there have been similar cases it may still be able to impose a different sanction if the new case is distinguishable from the previous cases. If the rule concerned has not been consistently applied in the past, the employer should change the disciplinary practice by giving notice to employees of how such cases will be dealt with in future.
 Ethikwini Municipality v Hadebe & Others (DA17/14  ZALAC 14 (10 May 2106)