In disciplinary proceedings, employees often use inconsistent treatment as a defence. Inconsistency can be either historical or contemporaneous. Historical inconsistency occurs when an employer who has never dismissed an employee for a specific offence in the past decides to do so without due notice. Contemporaneous inconsistency happens when only some employees are disciplined for the same offence, whilst others are not, or when all are disciplined, but only some are dismissed. It is generally considered unfair to treat similar offences differently. Finally, this issue of inconsistency has been put to bed.
For some time now, our courts have been grappling with the challenge of inconsistency, especially in cases of contemporaneous inconsistency. The Labour Court has recently handed down two judgments that clearly state that inconsistency alone cannot be the sole reason for rendering a dismissal unfair. It is just one of many factors that need to be considered when determining whether the dismissal of employees is justified.
The case of NUMSA on behalf of Members v Murray & Roberts Ltd and Sixteen Others, involved the dismissal of around 500 NUMSA members by contractors who were building the Medupi power station. The employees had gone on an unprotected strike in March 2015, which was led by NUMSA, and all the contractors were affected. Despite efforts to end the strike, it continued, leading to the dismissal of employees.
To handle the strike's extensive impact, employers had to create a system for determining how to treat different types of employees. They categorised all employees into three groups: Category A, employees who worked throughout the strike and faced no consequences; Category B, employees who participated in the strike but contacted their employer with reasons for their absence or returned to work periodically during the strike; and Category C, employees who made no effort to return to work and likely played an active role in the unprotected strike.
Category B employees were given an option to sign a document known as the "Peace Agreement"; which would require them to forfeit their salary and benefits during the period of the unprotected strike, including their project bonus. This document also included an acceptance of a final written warning for participating in the unprotected strike. Those who refused to sign were categorized as Category C and had to undergo disciplinary action. After the disciplinary process, approximately 500 NUMSA members were dismissed and their case went to the Labour Court.
The Labour Court concluded that the differentiation between Category B and Category C employees was justified and consistent. The court emphasized the importance of comparing similar situations and found that NUMSA's claim on behalf of 500 members for unfair dismissal was not valid. The court ordered NUMSA to pay the costs. The presiding Judge referred to a previous Labour Court judgment in NUMSA on behalf of Maseko and Others v AMT Africa Recruitment (Pty) Ltd, highlighting that inconsistency is just one of many factors considered in determining the fairness of a dismissal.
In this case, the employees went on an unprotected go-slow and were given ultimatums to resume full production. Those who complied with the final ultimatum were not punished, whilst those who continued with the go-slow received suspension notices, were required to attend a disciplinary hearing and were dismissed. NUMSA argued that all employees participated in the go-slow, and the only difference between those who returned to work and those who were dismissed was a single shift. Despite this, those who returned to full production faced no disciplinary action, whilst those who did not were dismissed.
The two categories of employees involved in the go-slow showed contrasting behaviours. The employees who returned to full production complied with the final ultimatum and stopped their participation in the go-slow, while the ones who continued with the go-slow failed to convince the court that they would have stopped the go-slow if they had not been suspended. The Labour Court ruled that it was reasonable to differentiate between the dismissed and non-dismissed employees and found the employer's disciplinary action to be appropriate.
The two judgments have established that if employees engage in the same wrongdoing, it is not inherently unjust to treat some of them differently from others. As long as the differentiation is not based on random selection or motivated by a hidden agenda, it should be able to withstand judicial scrutiny.