Consistency In Discipline, A Procedural Requirement
The employer must be consistent in the application of discipline, without being rigid or inflexible. Two employees should be subjected to the same disciplinary action if they both engaged in the same or similar misconduct, whether in the past or contemporaneously. In other words, the employer should have a formal procedure in place in the interests of consistency and to ensure that every employee is measured by the same standard. This principle has been codified in the Code for Good Practice: Dismissal as contained in the Labour Relations Act 66 of 1995(hereinafter referred to the Labour Relations Act).
Item 3 of Schedule 8 ofthe Labour Relations Act, Code of Good Practice, states that …“An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is clearly understood…..”
The Labour Court in Parmalat South Africa (Pty) Ltd v CCMA & others (LC Case Nn: JR 462/07; judgment date 3rd February 2009)held that the Commissioner’s decision was unreasonable in that the Commissioner misunderstood the application of the concept of inconsistency. It is clear from this case that if there is no evidence of any other employee having committed the same offence and not being charged or being charged and a lesser or no punishment being imposed on such an employee, then the employer does not need to produce evidence of past consistency. In other words, the employer only has to lead evidence and shift the burden of proof on the disputed allegations of unfairness.
Item 2 of Schedule 8 ofthe Labour Relations Act, Code of Good Practice, states that “a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment.” Whether or not the procedure is fair is determined by referring to the guidelines as set out in the Labour Relations Act.
In order for a dismissal to be fair, there has to be both substantive and procedural fairness. Substantive fairness refers to the reason for the dismissal, while procedural fairness refers to the procedures that are to be followed when dismissing. According to the Labour Relations Act there are three broad categories of reasons, that can be deemed to be fair reasons for dismissal:
Incapacity or Poor Performance
Dismissal for misconduct
Generally , it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such a magnitude that it makes the continued employment relationship intolerable.
Item 7 of Schedule 8 ofthe Labour Relations Act, Code of Good Practice, sets out the guidelines for dismissals for misconduct.
Some examples of serious misconduct, subject to the employer’s rule, include:
a)Gross dishonesty; or
b)Wilful damage to the property of the employer; or
c)Wilful endangering of the safety of others; or
d)Physical assault on the employer, a fellow employee, client or customer and gross insubordination.
A dismissal will not be fair if it does not meet the requirement of section 188.
Section 188 states as follows:
(1)“A dismissal that is not automatically unfair, is unfair if the employer fails to prove-
(a)That the reason for dismissal is a fair reason-
(i)Related to the employee’s conduct or capacity; or
(ii)Based on the employer’s operational requirements ; and
(b)That the dismissal was effected in accordance with a fair procedure.
(2)Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of practice issued in terms of this Act.”
Employers should take into account the following factors when deciding whether or not to impose a penalty of dismissal:
a)The employee’s circumstances;
b)The employee’s length of service;
c)The personal circumstances of the employee;
d)The nature of the job;
e)The circumstances of the infringement itself.
Please note that this list is not exhaustive.
The employer should and must apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, as well as consistently as between two or more employees who participate in the misconduct under consideration.
Item 4(1) of Schedule 8 of the Labour Relations Act, Code of Good Practice, states that:
a)“the employer should conduct an investigation to determine whether there are grounds for dismissal….
b)The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
c)The employee should be allowed an opportunity to state a case in response to the allegations.
d)The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee.
e)After the enquiry , the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision.”
Where the employer is determining whether a dismissal for misconduct is unfair, he should consider:
a)whether the employee contravened a rule or standard; and
b)if the rule or standard was contravened, whether the rule was a valid or reasonable rule or standard, the employee was aware or could reasonably be expected to have been aware of the rule or standard, the rule or standard has been consistently applied by the employer, and dismissal was an appropriate sanction.
Incapacity: Poor work performance
Item 9 of Schedule 8 ofthe Labour Relations Act, Code of Good Practice, sets out the guidelines in cases of dismissal for poor work performance
It states that “any person determining whether a dismissal for poor work performance is unfair should consider-
(a)Whether or not the employee failed to meet a performance standard; and
(b)If the employee did not meet a required performance standard whether or not-
(i)The employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii)The employee was given a fair opportunity to meet the requieed performance standard; and
(iii)Dismissal was an appropriate sanction for not meeting the required performance standard.”
An employee may sometimes be placed on probation for a specified period.
Before dismissing an employee during the probationary period, the employee should be given an opportunity to state his or her case.
Item 8(2)of Schedule 8 ofthe Labour Relations Act, Code of Good Practice states as follows:
“After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-
(a)Given the employee appropriate evaluation, instruction, training, guidance or counseling ;and
(b)After a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.”
Incapacity: Ill health and injury
If an employee is unable to work due to ill health or injury, the employer should investigate the extent of the incapacity or the injury.
If the employee is likely to be absent from work for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal.
Alternatives that the employer may have to consider include:
a)Nature of the job;
b)The period of absence;
c)The seriousness of the illness or injury and
d)The possibility of securing temporary replacement for the ill or injured employee.
Item 11 of Schedule 8 ofthe Labour Relations Act, Code of Good Practice, states that “Any person determining whether a dismissal arising from ill health or injury is unfair should consider-
(a)Whether or not the employee is capable of performing the work; and
(b)If the employee is not capable-
(i)The extent to which the employee is able to perform the work;
(ii)The extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and
(iii)The availability of any suitable alternative work.
If employers are found not to have followed their policies and procedures consistently, then it will be found to have acted unfairly. It is a requirement that an employer is “consistent” in the application of disciplinary action.
Employers should apply a rule to everyone in the workplace and not just to some of its employees.
The sanction to be applied is decided according to the circumstances of the matter and the personal circumstances of the employee.
Employers are nonetheless advised to adhere as closely as possible to their own procedures - there is no point in an employer compiling and introducing a procedure if he is not going to follow it.
Ms R Ramluckan
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