The parity principle can be described as the basic tenet of fairness, which requires that similar cases should be treated alike. Parity denotes a sense of fairness and equality before the law.
In the Labour Appeal Court matter of Absa Bank Limited v Devapriya Naidu and others, the Labour Appeal Court had to decide if the Labour Court erred in the finding that there was inconsistency on the appellant’s part in the manner its employees were treated on the issue of discipline. The first respondent, Ms Naidu, was convicted and dismissed for dishonesty. The CCMA and the Labour Court found the dismissal to be substantively unfair on the grounds that another employee who previously committed a similar transgression was only given a final written warning and not dismissed, and ordered reinstatement. The appeal was upheld in the Labour Appeal Court.
The parity principle should be applied with great caution. It does not intend to profit employees who commit a serious misconduct, and each case must still be treated on its own facts and circumstances.
The Parity Principle in practice
In the abovementioned case, Ms Naidu (an executive investment broker) was charged with gross dishonesty in that she switched a client’s fund from one investment portfolio to another without obtaining proper instruction from the client. Ms Naidu detached a page, which contained the client’s signature from a previous instruction and attached it to the new instruction in order to switch the client’s funds. In terms of the appellant’s disciplinary code, this misconduct falls within the category of “very serious offences”.
During the appeal, Ms Naidu raised the issue of inconsistency on the part of the appellant in the treatment of its employees in relation to discipline. Ms Naidu referred to an incident where Ms Pin Lai, a bond insurance advisor, committed a similar misconduct in order to obtain an insurance quote. Ms Pin Lai’s client was overseas at that stage but was fully aware and had given permission that the insurance quote may be obtained.
The Labour Appeal Court held that the situation of Ms Naidu and Ms Pin Lai was not comparable although both employees committed misconduct containing an element of dishonesty.
In accordance with the parity principle, the element of consistency on the part of the employer in its treatment of employees is an important factor to take into account in the determination of the fairness of a dismissal. It is only a factor to take into account in the process and it is by no means decisive in the outcome and on the determination of reasonableness and fairness of a decision to dismiss. The fact that another employee committed a similar transgression in the past and was not dismissed, cannot and should not be regarded as to grant a licence to every other employee to commit serious misconduct, especially misconduct containing an element of dishonesty.
Although the parity principle has been described as the basic tenet of fairness which requires that similar cases should be treated alike and that employees who behave in much the same way should have meted out to them much the same punishment, one should still apply the parity principle with caution – the principle of disciplinary consistency is often overemphasized.
ABOUT THE AUTHOR
Nadia Brits obtained her BCom Law and LLB degrees from the University of Pretoria in 2007 and 2009 respectively. She completed her articles at the Legal Aid Board before joining SEESA Labour as a legal advisor.