Consistency – The Parity Principle

“Discipline is consistency of action”- James C. Collins

What does it mean to apply a rule in the workplace in a consistent fashion?

What is the essence of consistency?

This question has been raised on many occasions and the courts have found that the very basis of consistency applies not to the sanction imposed by an employer, but rather to the application of disciplinary action.

Let me explain in greater detail; an employer is not expected to impose the same sanction (same form of punishment), in every case, for every employee who transgresses a rule in the workplace. Therefore, an employee who is found guilty of say, reckless and negligent driving, for example, and the company disciplinary code provides for dismissal as a first offence; the employer may not necessarily have to dismiss that employee, such employee may be given a written or final written warning, or may even be dismissed (if the trust relationship is broken to such an extent that it cannot be repaired).

The reasons being, that perhaps this situation (in the example above) possesses extenuating circumstances or strong mitigating factors. The principle is that each and every case should be judged on its own merit.

The courts however, merely require that an employer applies the disciplinary procedures in the same manner for each and every employee. Therefore, an employee who has been alleged to have committed an offence (as per the example above), the expectation on an employer is that the employee must be subjected to an investigation, a disciplinary hearing (if there is evidence to indicate that they committed an offence), be given an opportunity to test the evidence (by stating their version of the events that transpired) and thereafter (if the employee is found guilty of the alleged transgression), the employer has the discretion to request from the chairperson, to impose a sanction they deem appropriate in the circumstances. This is the very core reason mitigating and aggravating circumstances are considered in a disciplinary enquiry (my own emphasis).  

Deviating from the disciplinary code:

In continuing with the example above, say employee A was caught speeding and charged with reckless and negligent driving, whilst employee B too was caught speeding and charged with reckless and negligent driving. Employee A has 10 years’ service, whilst employee B has 6 months’ service with the employer and employee A explains that the reasons for his speeding was that he was being chased by hijackers and he needed to get away, whilst employee B explains that he was running late for knock-off time and needed to get back to the office; or perhaps, that employee A was driving 125km p/h, whilst employee B was driving at a speed of, say, 140km p/h – or whatever other mitigating or aggravating reasons are provided by the employees charged. Is an employer then expected to dismiss both employees, or issue final written warnings for both employees? Or can the employer impose an appropriate sanction in both instances? What happens if the employer has a disciplinary code that stipulates what sanction to impose on a first offence of a breach of a particular rule in the workplace?

The courts have indicated in the affirmative, that an employer may deviate from their company disciplinary code, depending on the circumstances.  Therefore, in the example above, an employer may be justified in issuing employee A with a written or final written warning, whilst employee B is issued a final written warning or even dismissed on the same charge.

Drawing a line in the sand:

A problem, however, arises in an instance whereby the employer does not follow any course of action against an employee for transgressing a particular rule in the workplace, by way of favoritism in the workplace. Whereby, some employees are able to just get away with murder, but others are sitting ducks.

Therefore, an employer can be challenged on the element of consistency, if they do not impose the application of their workplace rules in the same manner, across the board.

Moreover, instances where an employer is unaware that an employee transgressed a particular rule in the workplace, an employer cannot be challenged on a charge of consistency. How can an employer take action against a particular employee, if they were unaware that an employee had transgressed a rule?

The Labour Court in the matter of Conmed Health CC v Bargaining Council for the Chemical Industries and Others (2012) 33 ILJ 623 (LC) at paragraph 8 as follows:

“As stated previously by this court the parity rule does not take away the right of the employer to impose different sanctions on employees who were involved in the same act of misconduct. The issue when faced with the complaint that the employer has applied discipline inconsistently is to consider the fairness of such inconsistent application of discipline. In other words, the differential sanctions do not automatically lead to the conclusion that the dismissal was unfair. The fairness of the dismissal has to be determined on the basis of whether the employer, in imposing differential sanctions, acted unfairly. In assessing the fairness of a dismissal in a case involving the imposition of differential sanctions, the commissioner has to consider whether there is an objective and fair reason for imposing different sanctions for misconduct arising from the same offence.”

Righting wrongs of the past:

However, what does an employer do if they have previously fallen short in taking action against employees, finally implementing rules and strict measures for transgressions of these rules? Should an employer then be prevented from taking action against a new employee who has fallen foul to such a rule, with the new employee relying on the fact that the employer has not done so in the past? Do, in this case, two wrongs make a right?

The Labour Appeal Court addressed this question in the matter of Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and Others [2021] ZALAC 11; [2021] 8 BLLR 778 (LAC); (2021) 42 ILJ 1686 (GJ) at paragraph 26; as quoted by Makatshaba v Department of Education – Gauteng and Others (JR1699/18) [2021] ZALCJHB 308 in the Labour Court judgement handed down on 25 September 2021 at 3pm at paragraph 36, whereby Tlhotlhalemaje, stated that the Nyathikazi matter “aptly summed up the legal position in regards to the parity principle as follows:

‘In short, the parity principle may well mean that in the previous case which is invoked in support of the application of an argument concerning discriminatory discipline, then the gravity of the initial disciplinary offence had not been properly appreciated. In such circumstances, it may be unjustified to invoke the parity principle, where an employee has committed a serious offence against the employer and the only defence raised is that in a previous case a wrong decision had been arrived and so that the employee’s misconduct in the subsequent case can be overlooked…’”

Consistency and the Parity principle:

This principle of consistency, also referred to as the “parity principle,” and articulated as such in the matter of National Union of Metalworkers of SA and Others v Henred Fruehauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (A):

“Equity requires that the courts should have regard to the so-called “parity principle”. This has been described as the basic tenet of fairness which requires that like cases should be treated alike (see Brassey “The Dismissal of Strikers” (1990) 12 ILJ 213 at 229-30). So it has been held by the English Court of Appeal that the word “equity” as used in the United Kingdom statute dealing with the fairness of dismissals, “comprehends the concept that the employees who behave in much the same way should have meted out to them much the same punishment” (Post Office v Feennell (1981) IRLR 221 at 223). The parity principle has been applied in numerous judgments in the Industrial Court and the LAC in which it has been held for example that an unjustified selective dismissal constitutes an unfair labour practice.”

In summary

Consistency has its place in our labour laws, it is essential for an employer to apply its discipline in a fair, reliable and reasonable fashion. This, however, does not mean that a finding of guilt of a particular misconduct will always mean the same sanction for every employee. Each case will need to be judged on its own merit.

Remember – when in doubt, MISA is just a phone call away! Let us assist you in finding a valid defence for a charge of misconduct!

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