Consistency, also known as the parity principle, is an element of disciplinary fairness in South African labour law. When it comes to inconsistency, there are, broadly speaking, two types. The first is historical inconsistency which exists where in the past, an employee who committed a particular type of conduct was disciplined in one way and now another employee committing the same type of misconduct is disciplined in another. The second is contemporaneous inconsistency, which exists most prominently in mass industrial action – where two or more employees are involved in the same type of misconduct but different disciplinary sanctions are applied to each of them.
Schedule 8 of the Labour Relations Act contains the Code of Good Practice: Dismissals. Item 3(6) provides that employers should apply disciplinary penalties consistently, both insofar as historical and contemporaneous discipline is concerned. Treating like cases alike and avoiding selective punishment are the obvious foundations of the idea behind consistency in labour law.
Consistency is important as it creates predictability and certainty – in other words, employees will be well aware of the consequences of their actions, based on what happened to people in their position previously and what will happen to their colleagues presently involved in the same or similar misconduct.
For this reason, employers should be very cautious about being lax with certain forms of misconduct, as the failure to discipline an employee for committing a particular type of misconduct will set a precedent and might rise to an inconsistency challenge in instances where employees, later on, commit the same kind of misconduct and expect not to be subjected to any form of disciplinary sanction.
Sometimes, however, it is justifiable to treat employees differently even where they commit the same or similar type of misconduct. The weight of the consistency enquiry in a disciplinary enquiry is much less substantial in instances where employees’ personal circumstances are such that treating employees differently is warranted.
There is no presumption of inconsistency – employees who allege that disciplinary penalties have been applied inconsistently must show evidence to that effect. Only in these instances will the employer bear the onus of rebutting evidence of inconsistency. In addition, one must bear in mind that it might not be enough simply to allege inconsistency in sanction, rather, the inconsistency must be founded on suspected improper motives to which the employer may then have to answer.
The factors that differ from person to person which warrants employers handing down different sanctions for the same or similar misconduct includes, inter alia, level of seniority, length of service, past record and what gave rise to the employees committing the misconduct complained of. It must be remembered that the rationale behind the parity principle is not to force employers to punish all employees who commit similar misconduct in the same way without having regard to each individual employees’ personal circumstances.
