Inconsistent application of dismissal, the effect of showing remorse.

One of the grounds of a substantively fair dismissal in terms of Schedule 8 (7) (b) (iii) is whether an employer applies its rules and discipline consistently amongst its employees. Employers cannot have one set of rules for unwanted employees and a different set of rules towards employees who misconducted themselves, but who did not fall out of favor with the employer. Having said that, it is quite common for employees to defend unfair dismissal claims by claiming inconsistency. Even though this is a valid defense from a legal perspective, it is still difficult to mount a successful defense if this is the only defense an employee has. The reason is that each case must be assessed on its own merits. It is trite in our labour laws that there is no such thing that a dismissal is automatic, regardless of the misconduct committed. Employees often are not privileged to the full context and circumstances of other employees who, on the face of it, committed similar misconduct.

In SSC Infrasek (Pty) Ltd vs CCMA & ICHAWU obo Moses, Adenaan the employee was found guilty for gross dishonesty in that he removed a second hand cutter from the tool-shelf and presented it to the logistics manager as though it was his own. This he did in order to receive a new cutter from his manager.

The employee challenged the fairness of his dismissal at the CCMA, where the arbitrator found that the dismissal was procedurally fair. Even though the arbitrator agreed that the employee was guilty of gross dishonesty, the arbitrator still found the dismissal substantively unfair as other employees were also found to have been grossly dishonest in removing company tools.

The crux of the arbitrator’s reasoning was:

’The video clearly showed that the applicant had taken the new cutter and seconds later the old one from another shelf. His body language showed that he took the opportunity when Spencer was busy talking. During cross examination the applicant hesitantly answered questions. Spencer was consistent and certain that the applicant was dishonest. The applicant’s version was unlikely to be the truth in that he would have produced the old for his reasons. On a balance of probabilities, I find that the applicant was guilty of the misconduct, dishonesty.  

The respondent’s disciplinary code made provision for dismissal for dishonesty and theft cases. However, the responsibility had exercised discretion when remorse was shown by some staff. The applicant was dismissed they could simply say “sorry “for being dishonest. There is no real test for remorse. There is no guarantee that dishonesty could be corrected. 

 I find that the inconsistency in the disciplinary action between the applicant and other staff rendered his dismissal unfair. Although he was guilty of dishonesty, I find that dismissal in the circumstances was inappropriate.’ 

On review, the employer argued that the arbitrator committed a reviewable irregularity in deciding that no weight should be attached to the admission of guilt and apologies tendered by other employees, who all received final written warnings. In essence, the employer argued that the arbitrator failed to consider the significance of Moses being unwilling to admit his dishonesty, unlike other employees.

The employer further argued that even though it is true that there was no guarantee that progressive discipline would be successful merely because dishonesty had been admitted, it does not follow that it put Moses’s conduct on par with theirs as he never admitted any wrongdoing. This then cannot serve as a mitigating factor in his favour.

Apparent from the case is that the Managing Director, Mr. Venter, spoke to all the employees and gave them a chance to own up to their dishonesty. All the employees implicated, except Moses, admitted they had taken items without permission from the store. They were issued with final written warnings. For Mr. Venter it was important that employees who were confronted with alleged dishonesty owned up to it at an early stage. Mr. Venter admitted he would even have accepted an admission of dishonesty at a later stage, deserving of leniency.

Moses, however, claimed that he had simply left his own clippers at home and needed a pair for the day. This was difficult to accept as he could simply have said so. In addition, he only returned the new cutter after he was dismissed.

The court found:

‘Since the arbitrator failed to appreciate that such differences in behavior are indeed perfectly legitimate reasons for imposing different sanctions for the same misconduct, his conclusion that the employer had acted inconsistently cannot stand and must be set aside. It also follows that the justification for treating Moses’s case as if it fell into the same category as the others and did not warrant dismissal must also be set aside. In passing, it is interesting to note that the arbitrator also did not even impose a final written warning when he ordered the reinstatement of Moses, which was not consistent with the outcome in those other cases.

What we learn from this case is that even though employers should be consistent in the application of discipline, that each case is still to be assessed on its own merits. Taking the totality of circumstances and mitigating factors into consideration, it may render the outcome of a disciplinary process different for various employees, even though on the face it it they may have committed similar misconduct.

It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email: tobie@effectusharmony.co.za

visit: www.effectusharmony.co.za