Consistency in the application of discipline

Apr 13, 2010

Articles

Managers do not all have the same understanding of workplace rules, policies and
procedures. It is for this reason that consistency in the application of discipline is required
as it creates certainty and ensures that employees know and understand the implications
of unacceptable conduct.

The inconsistent application of workplace rules is more common in larger organizations,
especially those with workplaces spread across the country. Further, while managers must
exercise flexibility when it comes to imposing disciplinary sanctions, their decisions may
nevertheless, be precedent setting.

The requirement of consistency is also referred to as the “parity principle”, in terms of
which like cases are required to be treated alike. It may constitute unfairness to treat
people who have committed similar misconduct differently where the circumstances are
the same or comparable.

A distinction needs to be made between consistent application of the rule and consistency
with regard to the sanction that is imposed. It is inherently unfair to institute disciplinary
action against, for example, only one of two employees who are guilty of the same
transgression and in respect of whom the employer has sufficient evidence against both.
In this regard, justice requires that transgressors should be treated the same way. Of
course, it may turn out that the evidence against the one is strong, but weak against the
other, leading to one being found guilty and the other not. There is no inconsistency in
that.

However, justice also demands that, when it comes to sanctions, regard must be had to
the individual circumstances of each case. This is where managers need to exercise
discretion based on the aggravating and mitigating circumstances of each case.

In relation to consistency when it comes to sanction, the labour courts and arbitrators
have distinguished between the following two forms of consistency:

  • Historical consistency: The employer must apply the penalty of dismissal
    consistently with the way in which it was applied to other employees in the past. If
    the employer has not applied a sanction of dismissal for the contravention of a
    specific rule in the past, dismissing an employee for transgressing the rule could be
    unfair if the employer has not given prior notice to employees that the rule and its
    associated sanction will in future be applied more strictly. Also, if the employer
    regards genuine remorse as a mitigating factor in one instance of dishonesty, for
    example, it should do so in other instances too.
  • Contemporaneous consistency: This requires that a penalty must be applied
    consistently between 2 or more employees who have committed the same offence,
    provided there are not exceptional mitigating circumstances present in respect of
    one that is absent in the case of the other.

To overcome an inconsistency challenge, the employer must be able to show that there
was a valid reason for differentiating between groups of employees guilty of the same
offence. The employer must prove, for example, that the employees that have been
dismissed conducted themselves more reprehensively than those who were not dismissed.
The onus is on the employer to show just cause for the differential treatment of the
employees within similar circumstances.

How can employers correct historical inconsistency? The labour courts have held that
historical inconsistency arising from a wrong decision should not prejudice the employer
indefinitely. Should the employer wish to protect itself against claims of historical
inconsistency, employees should be informed that such decisions could not be expected to
be adhered to in the future. Therefore, guidelines for misconduct and the required
standards or norms must be clearly communicated within the organization. Issuing a
warning against chairpersons who make poor disciplinary decisions, that might lead to
future inconsistency, will also assist the employer’s case.

The following guidelines should be considered in the implementation of sanctions:

  • like cases should be treated alike;
  • exercising flexibility in the application of discipline is important, but care must be
    taken that it could be precedent setting;
  • exercising flexibility in the application of discipline is important, but care must be
    taken that it could be precedent setting;
  • exercising flexibility in the application of discipline is important, but care must be
    taken that it could be precedent setting;
  • the employer can protect itself against historical inconsistency arising from
    incorrect decisions by restoring the rule and communicating it clearly.

Robyn Walasan
April 2010

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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