Disciplinary sanctions: does truthfulness play a role?

Jan 4, 2010


It is generally required that employers must behave consistently when dealing with
transgressors. The employer’s rules must be applied consistently, that is, where
sufficient evidence exists, action must be instituted against transgressors in
accordance with the employer’s disciplinary code and procedure. Inconsistency in the
application of rules where evidence exists that a rule has been broken is, in most
cases, difficult to justify. Yet, consistency does not mean that all employees who are
found guilty of a particular transgression must always receive the same sanction, as
different aggravating or mitigating factors may apply.

In this regard the question arises whether an employee’s truthfulness may justify
different sanctions being imposed for the same transgression? Should the fact that
an employee shows remorse for his/her misconduct be taken into consideration in
determining an appropriate sanction?

These were two of the issues considered in the matter of NUMSA obo Skhalipi &
others / Guestro Forging & Machining [2009] 9 BALR 880 (MEIBC). Thirteen
employees were charged with consuming alcohol whilst on night shift. During the
disciplinary hearing all the employees denied that they had consumed alcohol, save
for two – the ‘whistleblower’ in the matter (a certain Jansen) and another employee, a
certain Jacobs. All the employees were dismissed, save for Jacobs and Jansen who
both pleaded guilty and who were given final written warnings. Before the MEIBC the
eleven dismissed employees argued that the employer had been inconsistent in
applying the sanction of dismissal.

The employer in this matter differentiated between the eleven employees and Jansen
and Jacobs on the basis that the latter had assisted in the enquiry; they did not lie;
they were completely open about their involvement in the events; and they had
shown true remorse for their actions. The arbitrator was of the opinion that remorse
could be inferred from an admission of guilt and in assisting in an investigation. The
arbitrator stated that ’[e]ven if the element of remorse is omitted from the equation, I
find a significant distinction between Messrs Jansen and Jacobs on the one hand
and the applicants on the other hand and that is the former were truthful about the
incident, whereas the applicants persisted in their lies and denials.’ The arbitrator
held that the differentiation between the applicants and Jansen and Jacobs were not
capricious, unreasonable or arbitrary.

As authority for his findings, the arbitrator, amongst others, referred to the matter of
SACCAWU & Others v Irvin & Johnson Ltd [1999] 8 BLLR 741 (LAC) as well as
articles by some labour law experts. In summary, the following guidelines may be
used when one is faced with the issue of consistency in sanction:

  • the so-called ‘parity principle’, which requires consistency in the application of
    sanctions, should not be used too rigidly;
  • when deciding on whether the parity principle applies, a court or arbitrator
    should not lose sight of the gravity of the misconduct committed by the
    employee who wants to rely on this principle;
  • where a disciplinary officer errs on the side of leniency in respect of an
    employee, the employer need not be burdened by that error to the extent that the employer has to reinstate or compensate employees who, viewed independently, deserved to be dismissed;
  • the test is whether it is possible to maintain a proper relationship between
    dismissed employees and their former employer. If a working relationship
    cannot be maintained, the parity principle will not assist the employee
  • parity is just one of the factors to consider in determining whether a particular
    sanction is fair;
  • the fact that different sanctions are imposed on employees who committed the
    same offence does not automatically render the more serious sanction unfair if
    there are sound reasons for the differentiation;
  • should a dismissal be fair and justified in the circumstances of the case, an
    employee cannot simply rely on the fact that another employee was not
    dismissed, provided that the differentiation between the two employees was not
    cautious, arbitrary or without reasonable foundation.

January 2010
Author: Elsabé Huysamen

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