Page 6 - KZN Business Sense 10.5 Lead story Raksha Laghari- eBook

CONSISTENCY AS AN ELEMENT OF FAIRNESS DURING

DISCIPLINARY HEARINGS

Johan van Deventer, of both the employer and
KZN Regional other employees. Factors to
Manager, LabourNet consider include the severity
and consequences of the offence,
onsistency the operational risk posed by
in retaining the employee, and
Cdismissal whether the employee has shown
for misconduct remorse. These factors are crucial
is fundamental in determining whether the
to fairness employer-employee relationship
but is often has irreparably broken down.
misunderstood. While consistency is critical in
It requires that ensuring fairness in disciplinary
similar offences matters, it is not an absolute
are treated similarly, and different principle. Consistency aims to
cases are treated according to prevent unjustified selective
their distinct circumstances. This punishment but does not
principle is sometimes referred to obligate employers to impose
as the parity principle. However, identical sanctions on employees
consistency should not be with differing circumstances.
confused with rigidity, meaning before, without providing or outcomes, weakens the typically in the form of a less The Labour Appeal Court in
that while employers must strive adequate notice to employees. inconsistency claim. severe disciplinary penalty. Nyathikazi v Public Health &
for uniformity, there should be Contemporaneous inconsistency Employers, on the other hand, Social Development Sectoral
room for flexibility based on occurs when different employees The court in Magumbo v must justify each disciplinary Bargaining Council & Others
specific case details. involved in the same misconduct Nkomati Joint Venture and decision and explain differences (2021) 42 ILJ 1686 (LAC),
receive different penalties, or Others [2015] ZALCJHB 309 between seemingly similar cases.
The requirement for consistent when only some are punished. went further, stating that merely reaffirmed that while discipline
treatment in dismissals is It is considered unfair to treat mentioning other employees’ Rigid adherence to a disciplinary should be applied consistently,
outlined in Item 7 of the Code of similar offences differently names and penalties isn’t enough; matrix is insufficient; employers fairly and reliably, the same
must account for the unique
Good Practice: Dismissal, which without justifiable reasons. employees must provide complete circumstances of each case. The misconduct does not always
emphasizes that an arbitrator records of the disciplinary Constitutional Court in Sidumo warrant the same sanction.
must consider whether the Although the employer carries hearings where lesser sanctions v Rustenburg Platinum Mines In conclusion, inconsistency
employer has applied the rule the burden of proving that a were imposed, allowing for a full Ltd and Others [2007] ZACC22, alone does not automatically
or standard consistently when dismissal was fair, employees comparison of the cases. clarified that arbitrators must render a disciplinary decision
determining whether a dismissal who claim inconsistency must independently assess whether unfair. It must be arbitrary
for misconduct is substantively present prima facie evidence In Southern Sun Hotel Interests a dismissal was fair based on or influenced by improper
fair. Additionally, Item 3 of to which the employer must (Pty) Ltd v Commission for the facts of the case, rather than motives to be considered unjust.
the same Code mandates that respond. In Government Conciliation, Mediation & deferring to the employer’s Nonetheless, employers must
employer rules should promote Printing Works v Mathala N.O. Arbitration & others (2010) 31 disciplinary code and has to apply remain vigilant and avoid
both certainty and consistency in and Others [2016] ZALCJHB ILJ 452 (LC); [2009] 11 BLLR a sense of fairness. inconsistent disciplinary actions
disciplinary matters. 358, the court held that the 1128 (LC), the court emphasized to maintain fairness. 
employee must first demonstrate In making fair decisions,
In disciplinary hearings, the alleged inconsistency by that inconsistency challenges employers should explain
employees often raise identifying the comparator should meet both subjective and their actions with reference to T: +27 (0)31 266 6570
inconsistency in treatment as a employees and their respective objective criteria. Subjectively, an business needs and the impact C: +27 (0)82 786 7480
E: johanvd@labournet.com
defence. Inconsistency can be circumstances. Moreover, the inconsistency challenge will fail of the employee’s misconduct. W: www.labournet.com
historical or contemporaneous. situations of the employees if the employer was unaware of Sanctions should balance various
Historical inconsistency being compared must be similar the misconduct of the comparator factors, including the nature
refers to situations where an enough to justify a comparison. employee. Objectively, there must of the offence, the employee’s
employer suddenly applies a A mismatch in comparison, such be a similarly situated employee circumstances, and the interests
sanction they have not enforced as using different circumstances who received different treatment,

SOUTHERN SUN, THE PREFERRED BIDDER

he eThekwini Municipality The redevelopment also brings Group is delighted that the City
recently announced the with it innovative solutions has managed and concluded
TSouthern Sun Hotel Group that promote sustainability the process for the selection
as the preferred bidder for the and minimise the impact on of a preferred bidder for these
lease and redevelopment of the the environment, including iconic properties which are vital
Elangeni and Maharani hotels for the installation of solar panels to the long-term maintenance
a period of 50 years. on both towers to augment the and rejuvenation of the Durban
electricity supply and grey water Beachfront.
The redevelopment entails an system which produces roughly
estimated capital investment 45 ML per annum and should “Southern Sun has a long
of R1 billion, including the save approximately 35 % of the history of operating on the
refurbishment of the Elangeni total annual water usage. beachfront and the area is very
and Maharani hotels as well as the much part of our DNA with
Garden Court South Beach and The Southern Sun Elangeni some of the best hoteliers South
The Edward hotels which are also and Maharani currently employs Africa has produced developing
owned by Southern Sun. approximately 450 employees, and their careers at these hotels. We
all those jobs will be retained with remain committed to seeing
In addition, a fund of R5 a further 200 jobs created during Durban unlock its full potential
million will be made available to the refurbishment phase which as a premier leisure, conference
restore and maintain the Sunken is expected to last for 36 months and sporting destination for
Gardens, a historically significant
park owned by the municipality after commencement. South Africa and look forward
on the beachfront in front of the Marcel von Aulock, the CEO to working with the eThekwini
hotels. of Southern Sun, stated that the Municipality to achieve this.” 

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