Monday, October 16, 2006

Treating Like Cases Alike in the Workplace – the principle of consistency in disciplinary enquiries
Helen Wilsenach

One of the basic principles of natural justice is that two persons guilty of similar misconduct should be disciplined in similar ways. Applied in the workplace, this means that an employer must be consistent in the application of discipline and accordingly, where two employees have engaged in the same or similar misconduct, whether in the past or contemporaneously, they should be subjected to the same disciplinary action. This principle has been codified in the Code of Good Practice: Dismissal, as contained in the Labour Relations Act. Failure to consistently discipline employees may lead to an employer being found to have acted unfairly and accordingly, to a compensation or reinstatement order being issued against it.

However, where the principle of consistency requires that every employee must be measured by the same standards or that like cases must be treated alike, this principle applies only to employees who have committed and/or been found guilty of the same offence.

Furthermore, the consistency principle is merely part of the general principle that discipline must not be capricious. Accordingly, disciplinary consistency is only one of the relevant factors that will be taken into account when determining whether or not a dismissal was substantively fair and as such an allegation of inconsistency may not necessarily render a dismissal unfair.

The principle of consistency must be applied subject to general considerations of fairness and ultimately the test for fairness still remains whether or not the employer can reasonably be expected to continue the employment relationship. What is, however, required is that a fair and objective value judgment be made in the circumstances of each case.

Distinguishing factors that may be taken into account in making this value judgment include an evaluation of the gravity of the misconduct, the employee’s disciplinary record and/or the roles played in the commission of the misconduct. In effect no extraneous matters should be regarded and a comparison should be made only between all the relevant features that are normally considered when an employee is disciplined.

Accordingly, whilst an employer does have a discretion and/or measure of flexibility when disciplining its employees, especially when different adjudicators are involved, the employer must still be able to justify any differential treatment on a fair, reasonable and objective basis. In the absence of material distinguishing features fairness would generally require that the same disciplinary action be taken against the employees in question.

Once an allegation of inconsistency has been adequately raised by an employee and sufficient details of the alleged inconsistency placed before the adjudicating forum, the evidential burden rests on the employer to displace the inference of bias. Furthermore, a plea of inconsistency does not require proof that the employer has acted in bad faith or for an ulterior motive and the mere perception of bias is sufficient.

By acknowledging that what an employer is in effect required to do is make a value judgment, albeit on fair and objective grounds, the courts have in recent years somewhat tempered the strict application of the principle of consistency and recognised that an employer does have a degree of flexibility/discretion when distinguishing between the disciplinary measures and/or sanctions to be meted out to its employees.

However this said, and as set out in the Code of Good Practice: Dismissal, disciplinary consistency nevertheless remains one of the factors that will be taken into account by an adjudicating forum when determining whether a dismissal was fair.

Accordingly, employers may want to take the steps set out below to avoid any allegations that they have acted inconsistently and as such, unfairly, in their disciplinary proceedings.

Train all managers and/or company personnel who may carry out any disciplinary action on the principle of consistency and the possible effect it may have on the fairness of a dismissal. This includes creating awareness of the importance of treating like cases alike and that inconsistency can take any one of the following forms:

· condoning an employee’s conduct and thereafter disciplining the employee for the same and/or similar conduct;

· where the employer has in the past, as a matter of practice, not dismissed and/or failed to take disciplinary action against employees for a particular offence, but thereafter decides to dismiss an employee for the same offence;

· failing to take action against an employee(s) who commits the same and/or similar offence contemporaneously or at roughly the same time as another employee and/or imposing different disciplinary sanctions.

Managers and/or human resources personnel should also be made aware that failure to take action against an employee may create a dangerous precedent going forward insofar as should any other employee in future be found to have committed a similar offence, any attempts by the employer to dismiss and/or otherwise discipline the employee may be open to challenge on the basis that the employer has acted inconsistently towards him/her.

Employers should also provide training regarding the manner in which an initiator of disciplinary proceedings and/or the chairperson of a disciplinary hearing should exercise his/her discretion when reaching a decision regarding whether or not to take disciplinary action against an employee and/or as regards the applicable sanction. In particular, that whilst factors such as prior disciplinary records and the severity of the offence may reasonably be taken into account, the person taking the decision must be able to objectively and reasonably justify why a different disciplinary sanction and/or disciplinary measure is being imposed in the particular case before him/her. Managers and/or human resources personnel should also be made aware of the need to keep up-to-date with the employer’s disciplinary history.

An employer’s human resources department should collate and keep an updated record of all disciplinary action taken against employees, including the nature of the misconduct in question and any distinguishing features of the particular case (for example, if the employee in question was on a final written warning). Managers and/or any personnel responsible for carrying out disciplinary action should be made aware of these records and should be required to take cognizance of the information contained therein before carrying out any disciplinary action. In this regard, the information made available and/or disseminated to the decision-maker in question can, for example, simply be in the form of a spreadsheet, which spreadsheet need not even contain the names of the employees in question. For ease of reference it would make sense for the spreadsheet to be organized according to the nature of the misconduct in question.

As an added precaution, any manager or individual tasked with the decision of whether or not to initiate disciplinary action, especially in the case of serious misconduct that could objectively be construed as justifying a final written warning and/or dismissal, and/or any manager or individual required to make a decision as regards an appropriate sanction, should liaise with the employer’s human resource’s department prior to taking such a decision. In particular, s/he should ensure that his/her decision in this regard is consistent with the overall approach taken by the employer in the past and/or that their actions and/or sanction are not going to negatively impact on the employer’s ability to discipline its employees for the same or similar offence in the future.

In the event that the employer is of the view that any of its past disciplinary practices are no longer appropriate, for example that it had been too lenient as regards a particular type of misconduct, the employer should clearly communicate (and document such communications) to all employees that going forward, and irrespective of the employer’s stance on the issue in the past, it will no longer tolerate such conduct and will be enforcing stricter disciplinary sanctions. Thereafter, the employer must obviously ensure that it implements this change in policy on a consistent basis. This should be sufficient to counter any accusations of historical inconsistency (although not contemporaneous inconsistency).

Finally employers should ensure that their own disciplinary policies and procedures do not expose them to risk by placing additional and/or unnecessary burdens relating to consistency on the company. This is especially bearing in mind that employers must follow their own procedures and policies when disciplining employees, and should an employer not do so, it will be found to have acted unfairly. Accordingly, an employer’s disciplinary code should not set out an inflexible and overly rigid categorization of disciplinary offences and the commensurate disciplinary sanction to be imposed in each case. If the employer does structure its disciplinary code in this manner, the chairperson of a disciplinary hearing will be bound to strictly follow the provisions of its disciplinary code, regardless of whether or not it is appropriate in a particular case and as such will have no discretion when adjudicating the facts of that case. In fact, the disciplinary code should make express provision for the discretion of the chairperson of the disciplinary enquiry to hand down the sanction which s/he, having taken into account all relevant and material factors, deems to be appropriate in the circumstances of the case.