6. magate phala

5th Annual

SHOP STEWARD CONFERENCE Indaba Hotel, Johannesburg

25 – 27 February 2015

WELCOME

1

Overcoming Inconsistency Relating

to the

Disciplinary Sanctions

Magate Phala

2

LRA (Code of Good Practice:

Dismissal)

Item 3 (5) of Schedule 8, Labour Relations Act 66 of 1995 as

amended, provides that “when deciding whether or not to impose

the penalty of dismissal, the employer should in addition to the

gravity of the misconduct consider factors such as the employee’s

circumstances (including length of service, previous disciplinary

record and personal circumstances), the nature of the job and the

circumstances of the infringement itself;

Sub item (6)……... the employer should apply the penalty of

dismissal consistently with the way in which it has been applied to

the same and other employees in the past, and consistently as

between two or more employees who participate in the misconduct

under consideration.

3

Author’s Perspective

• John Grogan; Dismissal, Discrimination & Unfair Labour

Practices on page 273 (Second Edition)

• The courts have distinguished between historical inconsistency and

contemporaneous inconsistency. Historical inconsistency occurs

when an employer has in the past, as a matter of practice, not

dismissed employees or imposed a specific sanction for

contravention of a specific disciplinary rule. Contemporaneous

inconsistency occurs when two or more employees engage in the

same or similar conduct at roughly the same time, but only one or

some of them are disciplined, or where different penalties are

imposed.

4

CaseLaw Perspective

• Comed Health CC v National Bargaining Council for the Chemical Industry and Others (2012) 33 ILJ 623 (LC) at para 10. the Court held that:

• It is trite that the employee who seeks to rely on the parity principle as an aspect of challenging the fairness of his or her dismissal has the duty to put sufficient information before the employer to afford it (the employer) the opportunity to respond effectively to the allegation that it applied discipline in an inconsistent manner. One of the essential pieces of information which the employee who alleges inconsistency has to put forward concerns the details of the employees who he or she alleges have received preferential treatment in relation to the discipline that the employer may have meted out.‟

5

CaseLaw Pers..…….

• SA Municipal Workers Union on behalf of Abrahams and Others

v City Of Cape Town and Others(2011) 32 ILJ 3018 (LC) at para

50 ; the court held that where an employee alleges inconsistency.

The employee must show the basis thereof, for example he must

reveal the name of the concerned employee and also the

circumstances of the case. This is necessary for the employer to

respond properly to the allegation. Failure to do so may lead to a

finding that no inconsistency exists or was committed by the

employer. This situation never shifts the onus from the employer to

the employee to prove that there is no consistency.‟

6


• In SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 1957(LAC). the court held that;

• “Discipline must not be capricious. 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 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’.”

7


• Snyman AJ; in Masubelele v Public Health and Social

Development Sectoral Bargaining Council and Others

(Unreported JR 1151/2008) [2013] ZALCJHB 3 (17 January

2013), at para 34

• “In my view, the ratio in the judgment in SA Commercial Catering

and Allied Workers Union and Others v Irvin and Johnson Ltd is

clear. The following principles apply to the determination of the issue

of inconsistency so as to ensure inconsistency is not found to exist

in the case of dismissal of employees: (1) Employees must be

measured against the same standards (like for like comparison); (2)

The chairperson of the disciplinary enquiry must conscientiously and

honestly determine the misconduct;

8


• (3) The decision by the employer not to dismiss other employees

involved in the same misconduct must not be capricious, or induced

by improper motives or by a discriminating management policy (this

conduct must be bona fide); (4) A value judgment must always be

exercised”.

9


Southern Sun Hotel Interests (Pty) Ltd v CCMA &

others [2009] 11 BLLR 1128 (LC), the court held that

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.

See also (Shoprite Checkers (Pty) Ltd v CCMA and

Others [2001] 7 BLLR 840 (LC) at para 3).

10

CaseLaw Pers….

National Union of Public Service and Allied Workers

(NUPSAWU) obo Mani and Others v National Lotteries

Board [2013] 8 BLLR 743 (SCA), the court held at para 34

• There is no inconsistency in giving, on the one hand,

written warnings to those employees who acknowledged

their wrongdoing and, on the other, dismissing those who

did not.

11


• NUM and another v Amcoal Colliery T/A Arnot Colliery And

Another [2000] 8 BLLR 869(LAC),the court 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.”

12


• CEPPWAWU v NBCCI and Others [2011] 2 BLLR 137

(LAC), the court held that;

• In cases of collective misconduct the employer is only obliged

to discipline employees in respect of whom it has evidence.

An employer is not obliged to investigate the identity of every

person who may have participated in wrongful activity. In the

case of collective misconduct a "wrong decision" resulting in

an acquittal of an employee who did commit an offence will

only be unfair "if it is a result of some discriminatory

management policy“.

13


• Nugent AJA in Cape Town City Council v Masitho

and others (2000) 21 ILJ 1957 (LAC) held that:

• The parity principle, a basic tenet of fairness, requires

that like cases should be treated alike: if two employees

are caught committing much the same wrong, one

should not be disciplined if the other goes free; nor, if

their personal circumstances are much the same, should

one be more severely punished than the other’.

14


• SRV MILL SERVICES (PTY) LTD v CCMA & OTHERS

(2004) 25 ILJ 135 (LAC) at par 26 that:

• “it is not part of the law on consistency that bias or

ulterior purpose must be established before a

disciplinary outcome can be said to be inconsistent to

the point that it impacts on the requirement of fairness.

One of the reasons underlying the need for consistency

is that the perception of bias should be avoided.”

15


• Greater Letaba Local Municipality v Mankgabe

NO and others [2008] 3 BLLR 220 (LC)

• Where, as in this case, employer has a huge

workforce, it is of vital importance that consistent

sanctions are constantly imposed on employees

found guilty of the same misconduct, where there is

nothing else to distinguish the one from the other.

This is the general rule of the principle of

consistency.

16


• Mphigalale v Safety & Security Sectoral Bargaining Council

& others (2012) 33 ILJ 1464 (LC), the court considered whether

the bargaining council arbitrator had committed a gross

irregularity by imposing a sanction of dismissal on the employee

guilty of corruption where two other police officers had earlier

been given sanctions short of dismissal for the same offence. The

court found that there was evidence before the arbitrator that the

sanctions in the earlier matters had been imposed in error and

that, although as a general rule fairness requires that like cases

be dealt with alike, an employer is not required to repeat a

decision made in error or one which is patently wrong. This was

especially so given the nature of the misconduct committed in this

matter and the employee’s position as a police officer.

17


• Consani Engineering (Pty) Ltd v Commission for Conciliation,

Mediation and Arbitration and Others (2004) 25 ILJ 1707 (LC) at

para 19. it was held as follows:

• The requirement of consistency is not a hard and fast rule. It is

something to be kept in mind as an aspect of disciplinary fairness.

Flexibility in adapting to a changing environment is equally

important. Shifts in policy inevitably introduce standards not

consonant with past practices. The applicant's change in policy to

one of zero tolerance hence can be fairly regarded as a legitimate

modification of the operational means for protecting the company

from ongoing stock losses. Any ensuing element of inconsistency

cannot be considered arbitrary or in bad faith in the circumstances.

18


• Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR

541 (LAC)

• Like cases should be treated alike. In appropriate cases

an employer may be justified in differentiating between

two employees guilty of the same transgression on the

basis of their personal circumstances or on merits.

19


• The basis for the principle governing the need for consistency in

discipline was stated by the Labour Appeal Court in Gcwensha v

CCMA & Others (2006) 3 BLLR 234 (LAC), in the following terms:

• “Disciplinary consistency is the hallmark of progressive labour

relations that every employee must be measured by the same

standards.” The Court went further to say:

“when comparing employees care should be taken to ensure

that the gravity of the misconduct is evaluated …”

20

THANK YOU

21

6. magate phala

Documents