The term consistency is often thrown around in the workplace when disciplinary action is either taken or is anticipated against an employee. The issue has far greater consequence, particularly to the employer and its finances. It has become a common ground for Union officials and employees to challenge the substantive fairness of a dismissal and/or the reasonableness with which any disciplinary action is taken against employees.
The Oxford dictionary definition: Consistent behaviour or treatment. ‘the consistency of measurement techniques’ ‘With respect to the many systems objection, an obvious first move is to reject its identification of coherence with mere logical consistency.
This doesn’t shed sufficient light on the matter, and to be honest, within the realm of labour law, it effectively requires that an employer applies its rule/procedures in a fair manner without favour or prejudice. In other words if one employee is taken to task for late coming then all employees must be taken to task for their respective late coming.This is where the term ‘historical inconsistency’ comes from.
What is historical inconsistency?
Historical inconsistency means that where you have had a number of employees who have all committed the same act of misconduct at different times, those employees have not been measured by the same standard – the same disciplinary procedure has not been applied.
Why is this important?
Well, if I were to charge an employee for falsifying his clocking reports and then dismissing that employee, I as the employer, must hold all employees to the same standard when they, in turn, commit the same offence in the future. In other words, dismiss all subsequent transgressors in the future.
Our courts view this in the following manner: Case studies
The approach adopted when dealing with the issue of inconsistency in disciplinary hearings is set out in SACCAWU & Others v Irvin Johnson Limited (1999) ILJ 2303 (LAC) at 2313, paragraph 29 the court held that:
“It was argued before us by Mr Grobler for the appellants that by not dismissing four employees who had also participated in the demonstration, the respondent applied discipline inconsistently. It is really the perception of bias inherent in a selective discipline which makes it unfair. Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that the other employees profit from that kind of erroneous decision. In a case of a plurality of dismissals, a wrong decision can only be unfair it is capricious, or induced by improper motives or, worse, by a discriminating management policy.”
The term historical consistency would suggest that in the past, each time the same act of misconduct was committed by different employees, the employer applied the same standards of measurement and followed exactly the same disciplinary procedure in each case.
There is a further form of inconsistency known as ‘contemporaneous inconsistency’. This is where two or more employees have committed the same act of misconduct at the same time, but not all are subjected to disciplinary action, but only some are. Alternatively, that the respective employees are issued with varying degrees in the form of a sanction.
Naturally, each and every case must be adjudicated on its own merits and circumstances presented and as a result a thorough investigation should be done in each and every matter prior to embarking on disciplinary action against any employee. Certain factors such as years of service or previous disciplinary record will have a bearing on the appropriateness of any sanction that may be imposed.
In Southern Sun Hotel Interests (Pty) Ltd v CCMA & others  11 BLLR 1128 (LC), the court held that an inconsistency claim will fail where the employer is able to differentiate between employees who committed similar transgressions on the basis of, inter alia, differences in personal circumstances, the severity of the misconduct or on the basis of other material factors.
In NUM and another v Amcoal Colliery t/a Arnot Colliery and another  8 BLLR 869(LAC), in determining the fairness of the dismissal of sixteen employees who had been dismissed for failing to comply with an instruction (at page 875 middle para 19), the court said the following:
“The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence.”
In SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 1957(LAC) the court found that: “The best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision….a wrong decision can only be unfair if it is capricious, or induced by improper motives, or worse, by a discriminating management policy’.”
In conclusion, employers should endeavour to ensure that they apply their respective codes of conduct and/or policies in an equal and consistent manner within the workplace. In other words, establish a rule, ensure that all employees are fully aware of the rule and the possible consequences for transgressing the rule. Then apply all procedures and disciplinary action in the same manner when taking disciplinary action against those that transgress the rule or policy.
ABOUT THE AUTHOR
Ryan King is currently employed as a SEESA Labour Senior Legal Advisor. He obtained his LLB degree from The University of South Africa in 2011.