Employment law update – Inconsistency – not determinative in establishing unfair dismissal

August 1st, 2018
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Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Assmang (Pty) Ltd t/a Khumani Mine v Commission for Conciliation, Mediation and Arbitration and Others (CC) (unreported case no JR2416/15, 24-5-2018) (Lagrange J)

There seemingly is a prevailing misconception among practitioners and arbitrators that a decisive factor in assessing the fairness of a dismissal is that of consistency.

Once an employer is shown to have acted inconsistently by dismissing one employee, while not another who committed the same or similar misconduct, the prevalent view is that it automatically follows that the employee’s dismissal is substantively unfair.

The case in question brings to light the correct approach in addressing the parity principle.

The third respondent employee was employed by the applicant, in accordance with the Mine Health and Safety Act 29 of 1996, as a drill dig supervisor. His position placed a statutory obligation on him to adhere to and enforce a number of safety regulations.

On a particular day the employee was observed leading a large number of workers, on foot, across a bridge, which was designated for vehicles only and as such, in breach of a particular safety regulation.

Pursuant to his conduct the employee was dismissed whereafter his trade union, the fourth respondent, referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

At arbitration the employee raised the argument of consistency. It was common cause that none of the employees who followed the employee across the bridge, were identified by the employee or the employer and hence not charged for the same breach of the safety regulations. It was also accepted that had such employees been identified, they would have been subjected to the same disciplinary process.

In finding the dismissal substantively unfair, the arbitrator held:

‘Somerset [the third respondent’s SHEQ officer] had singled out the applicant because, according to his testimony, he was the supervisor of the crew … on that day. It is inexplicable how when safety is [the] responsibility of everyone that the applicant could be found to have committed a [more] serious offence than the other employees. It is also inexplicable how the applicant could be singled out when [the] safety transgression does not discriminate depending on the levels of seniority. It boggles my mind that when this offence is considered to be so serious as to … lead to dismissal that other discretions of the same offence were left out without being disciplined.

The respondent has failed to bring disciplinary action against the other employees [that] walked over the bridge. It therefore denied itself an opportunity to determine [whether] the merits of the cases of the … other transgressors would have been the same or different and justifies [the] action against the applicant vis-à-vis the other cases merits. Had it taken action against the other transgressors it would have been able to distinguish the merits of the applicants’ case to those of others.’

Having concluded that the trust between the parties had not broken down, the arbitrator awarded the employee reinstatement.

On review the employer relied on the following two grounds to set aside the award –

  • the arbitrator failed to consider the fact that the employee’s position placed a statutory obligation on him to adhere to and ensure his subordinates adhere to safety regulations; and
  • reinstatement was not an appropriate remedy.

Referring to a Labour Appeal Court judgment, Lagrange J held:

‘In a more recent restatement of the role of inconsistency in substantive fairness the LAC [had] this to say … :

Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as I say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. In my view, the fact that another employee committed a similar transgression in the past and was not dismissed cannot, and should not, be taken to grant a licence to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer in the belief that they will not be dismissed. It is well accepted in civilised society that two wrongs can never make a right. The parity principle was never intended to promote or encourage anarchy in the workplace. As stated earlier, I reiterate, there are varying degrees of dishonesty and, therefore, each … case will be treated on the basis of its own facts and circumstances’ (my italics).

Following this quote, the court held:

‘The arbitrator in this case clearly did consider the issue of consistency to be dispositive of the issue of substantive fairness. It is perhaps this underlying misconception coupled with his single-minded focus on the failure to initiate disciplinary action against the members of the third respondent’s team which resulted in the arbitrator failing to address important factors which did distinguish why it was justified in dismissing the third respondent, even if it should not have simply failed to make an effort to also charge his subordinates.’

Although the court held that the arbitrator could not be faulted for finding that safety was an issue all employees were obligated to observe, the distinguishing factor between the employee and his subordinates, which the arbitrator failed to consider, was the position of seniority the employee occupied – which position carried a greater degree of responsibility as set out in statutory regulations.

In addition, even though the court found that the arbitrator’s finding, that the employer ought to have identified and disciplined the employee’s subordinates, was less open to criticism, it nevertheless held

‘that could not on any ground be dispositive of the question of the fairness of the third respondent’s dismissal. At best, such selective initiation of disciplinary action might have provided a basis for a finding of a degree of inconsistency in the application of disciplinary action. What the arbitrator did was to collapse the distinction between a finding of selective initiation of disciplinary proceedings with the entire question of whether the third respondent’s dismissal in any event was warranted.’

The award was set side and replaced with a finding that the employee’s dismissal was substantively fair. There was no order as to costs.

This article was first published in De Rebus in 2018 (Aug) DR 51.

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