In the realm of workplace discipline, the term “consistency” frequently arises, along with its counterpart, “inconsistency.” These concepts are pivotal to the fair and equitable administration of disciplinary action. To comprehend the requirement of consistency, one must move beyond simplistic definitions and delve into the practical implications of treating “like with like” and ensuring fairness across similar cases of misconduct. 

Understanding Consistency in Discipline 

Consistency in workplace discipline means applying the same standard or measure across comparable situations. This principle ensures that employees who commit similar acts of misconduct are treated in a like manner. However, it is essential to distinguish between procedural consistency and uniformity in sanctions. While the same disciplinary process should be followed in similar cases, the outcomes may vary based on specific circumstances. 

Two primary forms of inconsistency can arise in disciplinary matters: 

• Historical Inconsistency: Occurs when similar acts of misconduct in the past were addressed differently. For example, if previous incidents of particular misconduct resulted in verbal warnings, but a similar case now leads to dismissal, the employer may be accused of historical inconsistency. 
• Contemporaneous Inconsistency: Refers to treating employees differently for the same misconduct occurring at the same time. For instance, if multiple employees engage in collective misconduct, but only some are disciplined or different sanctions are applied, this constitutes contemporaneous inconsistency. 

The Courts’ Perspective on Consistency 

South African courts have grappled with inconsistency in disciplinary matters, particularly contemporaneous inconsistency. Recent Labour Court judgments, such as NUMSA on behalf of Members v Murray & Roberts Ltd and Sixteen Others and NUMSA on behalf of Maseko and Others v AMT Africa Recruitment (Pty) Ltd, underscore the principle that inconsistency alone does not render a dismissal unfair. Instead, it is one of several factors considered when determining the fairness of disciplinary action. 

In Murray & Roberts Ltd, the court upheld the differentiation between categories of employees during an unprotected strike based on their actions and level of participation. Similarly, in AMT Africa Recruitment (Pty) Ltd, the court found it reasonable to distinguish between employees who resumed full production and those who continued a go-slow. 

These cases highlight the importance of comparing “similar” situations. Employers must ensure that differentiation in treatment is not arbitrary or motivated by improper considerations. 

Balancing Consistency and Fairness 

While consistency is a cornerstone of fairness, it is not absolute. The Labour Relations Act’s Code of Good Practice: Dismissal emphasizes the need for certainty and consistency in disciplinary rules but acknowledges that sanctions may vary based on circumstances. Factors influencing disciplinary outcomes include: 

• Severity of the offence: The potential harm caused by the misconduct. 
• Employee circumstances: Factors such as service record, previous disciplinary history, and mitigating circumstances. 
• Operational considerations: Risks posed by continued employment, impact on business operations, and the trust relationship. 

For example, an employee found sleeping on duty in a low-risk role (e.g., a kitchen staff member) may receive a lighter sanction than a security guard whose misconduct endangers safety and security. Both cases should follow the same procedural fairness, but the outcomes may differ due to the distinct circumstances. 

The Burden of Proof in Inconsistency Claims 

Employees alleging inconsistency bear the burden of establishing prima facie evidence. This includes identifying comparable employees, detailing their circumstances, and demonstrating differential treatment. Employers, in turn, must justify their decisions by referencing business needs and the specific impact of misconduct. 

In Government Printing Works v Mathala N.O. and Others, the court emphasized the importance of adequate comparators and detailed records of disciplinary proceedings. The mere mention of names or penalties without substantive evidence is insufficient to prove inconsistency. 

Practical Implications for Employers 

To mitigate risks of perceived inconsistency, employers should: 

• Establish clear disciplinary codes: Ensure rules and procedures are well-defined and consistently communicated. 
• Document decisions meticulously: Maintain detailed records of disciplinary processes and justifications for sanctions. 
• Consider individual circumstances: Evaluate mitigating and aggravating factors to ensure fair and appropriate outcomes. 
• Train managers: Equip them with the skills to apply disciplinary codes consistently and fairly. 

Conclusion 

Consistency in workplace discipline fosters fairness, enhances trust, and minimizes disputes. However, consistency does not imply rigidity. Employers must strike a balance between uniform procedures and nuanced sanctions that reflect the unique circumstances of each case. As South African labour jurisprudence evolves, it reinforces the principle that fairness, rather than mere uniformity, is the ultimate standard in disciplinary matters. 

Written by Ross Hendriks, Attorney, SchoemanLaw