Employers are often faced with allegations of being inconsistent in the application of a rule, be it late-coming or negligence or any other form of misconduct. As per Schedule 8 in the Code of Good Practice – Dismissal, in order to succeed with a substantively fair dismissal for misconduct, an employer must be able to satisfy the following questions in the affirmative:
- Is there a rule?
- Did the employee contravene the rule?
- Was the employee aware, or could reasonably have been expected to be aware of the rule?
- Was the rule reasonable and consistently applied?
- Is dismissal the appropriate action?
In this article, we will pay specific attention to the issue of consistent application of the rule.
Inside and outside the employment arena it is, generally speaking, unfair to treat people differently when they have committed similar transgressions. Inconsistent application of a rule creates confusion and doubt as to the actual existence of a rule. For example, if employee X arrives 15 minutes late for work on a Monday, and is not disciplined, and employee Y arrives 15 minutes late for work on the Tuesday, but employee Y is disciplined, the rule is inconsistently applied. The courts have distinguished between 2 notions of inconsistency, being historical inconsistency and contemporaneous inconsistency.
Historical consistency refers to the manner in which an offence was dealt with in the past as opposed to how it is currently dealt with, specifically concerning the sanction which was imposed. In such circumstances, the employees are unaware that the transgression could result in dismissal as in the past it had not resulted in dismissal. A good example would be an employer in the security industry who, as a rule, issued a final written warning if employees were caught sleeping on duty in the past, but now the employer decides that the transgression becomes dismissible in the first instance. The employer has now decided to become stricter and effectively changed the disciplinary code in the workplace. This form of inconsistency would render a dismissal substantively unfair.
To curb historical inconsistency employers are advised to inform staff properly of changes in the severity of a specific transgression. The employees must know that the employer has ‘turned a new leaf’ and from now on certain transgressions will be regarded as dismissible in the first instance, where in the past they were not.
Contemporaneous inconsistency refers to more than one employee committing similar offences simultaneously or in a short period of time, but only one employee is disciplined or different sanctions are imposed. In this instance, the unfairness flows from the ‘’parity principle’’ that similar cases should be treated alike. Many cases are lost due to the employee establishing that other employees had committed the same type of offence and the employer did not take any action. Employees guilty of misconduct could effectively profit from the employer’s contemporaneous inconsistency, actually raising doubt as to the existence of the rule which was transgressed. If the employee is able to prove this type of inconsistency, it would render a dismissal substantively unfair. Contemporaneous inconsistency can be justified if the employer can show good cause for issuing a different or more severe sanction in one instance as opposed to another. This will depend on the matter at hand, but if the differentiation is arbitrary it will not succeed.
In conclusion, it is important to apply the rules in the workplace to all levels of employees. Employers will not be justified if rules are applied at random or when the employer decides he has had enough. The employer must, at least with regard to the application of the rules in the workplace, be constant as the northern star.
ABOUT THE AUTHOR
PJ Delport is a Labour and Consumer Protection & POPI Legal Advisor at our Port Elizabeth branch since January 2015. PJ completed his LLB degree in 2012 at Nelson Mandela Metropolitan University (NMMU) as well as BA degree in Social Dynamics at US in 2008. He has also lectured Commercial Law, Labour Law modules and short learning programmes at NMMU. PJ has finalised his master’s degree in Labour Law in 2017 at NMMU.