Consistency in workplace discipline is a fundamental element of substantive fairness. Employers must enforce rules and impose disciplinary actions without bias or arbitrariness. The principle of consistency ensures that disciplinary decisions are justifiable on objective, operational grounds, preventing perceptions of favouritism or discrimination. However, while consistency is crucial, it is not absolute. Each case must be judged on its own merits, allowing for necessary discretion and flexibility. 

The Two Forms of Consistency 

Workplace discipline requires adherence to two distinct forms of consistency: 

1. Historical Consistency 

• This form of consistency ensures that disciplinary sanctions are applied consistently over time. Employers should not suddenly impose stricter sanctions for misconduct unless employees have been forewarned of a change in approach, often referred to as a "clamp down." 
• Employers are allowed to revise their disciplinary stance, but fairness dictates that employees be given clear notice before a new standard is enforced. 

2. Contemporaneous Consistency 

• This applies to situations where multiple employees commit the same infraction at the same time. 
• However, sanctions do not have to be identical unless the circumstances of the infractions and the employees involved are truly the same. If an employer can justify differentiation based on legitimate factors, it does not amount to unfair inconsistency. 

Consistency and the Principle of Fairness 

The principle of fairness dictates that each disciplinary case must be evaluated on its own merits. The Labour Appeal Court in SACCAWU & others v Irvin & Johnson [1999] noted that reasonable consistency is required, but some degree of variation is inevitable due to the exercise of discretion. 

Furthermore, in NEHAWU obo Buqa v Department of Health (Western Cape) and Others [2022], the Labour Court ruled that an employee should not escape disciplinary consequences solely because others have avoided punishment in similar circumstances. 

The Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others [2009] case emphasised that inconsistency claims fail where employers can differentiate between employees based on factors such as: 

• The severity of the misconduct 
• Personal circumstances 
• The operational impact of the transgression 

Case Law on Differentiating Disciplinary Outcomes 

1. EDCON Limited v Cantamessa and Others [2019]: The court upheld different treatment of co-perpetrators based on the degree of their participation in misconduct. 
2. Mtshwene v Glencore Operations South Africa (Pty) Ltd [2019]: A manager's failure to oversee subordinates effectively was treated more severely than the misconduct of the subordinates themselves. 
3. Mhlanga / Drager SA [2020]: A manager who took alcohol from an honesty bar was dismissed, while an intern who did the same received only a final warning. The differentiation was justified based on their respective roles and responsibilities. 

Employees' Burden in Alleging Inconsistency 

When alleging inconsistency, employees must: 

1. Provide a basis for the claim, including the names of comparator employees and details of their circumstances. 
2. Ensure that the comparator cases are similar enough to warrant comparison. Different circumstances may justify different outcomes. 

The Labour Court in Magumbo v Nkomati Joint Venture and Others [2015] ruled that merely citing names and penalties of comparable offenders is insufficient. A full record of hearings and disciplinary proceedings is required to establish a valid claim. 

Employer Responsibilities in Ensuring Fair Discipline 

To maintain fairness and defend disciplinary decisions, employers must: 

1. Justify each sanction with reference to operational needs and the impact of the misconduct. 
2. Avoid rigid adherence to disciplinary codes without considering individual circumstances. 
3. Clearly communicate workplace rules, potential sanctions, and any changes to disciplinary approaches. 
4. Apply a balanced approach that takes into account: 

• The severity and consequences of the offence (e.g., financial loss, reputational harm, disruption to business operations). 
• The operational risk posed by continued employment of the offending employee. 
• The example set for other employees regarding tolerance for misconduct. 
• The employee’s level of seniority or specialist knowledge. 
• Whether the trust relationship between employer and employee has been irreparably damaged. 

Overcoming Historical Inconsistency 

Labour courts recognise that past inconsistent decisions should not indefinitely bind an employer. To correct historical inconsistency: 

• Employers must communicate changes in disciplinary approaches to employees. 
• Employees should be informed that past leniency does not create a binding precedent. 
• Guidelines for misconduct must be clear and consistently applied moving forward. 

Conclusion 

Consistency in workplace discipline ensures fairness and prevents claims of bias. However, rigid uniformity is neither practical nor required. Employers must apply disciplinary sanctions with due consideration for individual circumstances while maintaining reasonable levels of consistency. Proper training for managers and clear communication of workplace rules are critical to fostering a fair and legally compliant disciplinary framework. By balancing consistency with discretion, employers can uphold workplace discipline while minimising legal risks. 

Written by Ross Hendriks, Specialist Employment and Labour Law, SchoemanLaw Inc