CONSISTENCY IN WORKPLACE DISCIPLINE

Written by Jaco Parkin

Ask any labour practitioner what keeps them up at night before a disciplinary hearing, and “was I fair to the last person who did this?” is usually somewhere on the list.

That question sits at the heart of one of the most misunderstood ideas in South African labour law: consistency.

Employees invoke it. Chairpersons wrestle with it. Commissioners at the CCMA and bargaining councils scrutinise it. For employers, getting it wrong is not just a technicality. It is one of the factors that can result in an otherwise justified dismissal being found unfair, and it can quietly undo months of careful disciplinary work if it is not understood properly from the outset.

Why This Should Matter to Employers

Consistency is not an abstract legal nicety. It has direct, practical consequences for the establishment. An employer who cannot show a consistent approach risks having a fair, well-evidenced dismissal overturned because a similar case was handled differently in the past.

That can mean reinstatement, back pay, legal costs and time. It also means a manager or chairperson's judgment being second-guessed after the fact, often in front of the very employees they still have to manage.

Beyond the legal exposure, inconsistency erodes something harder to rebuild: trust in the system. When employees see that discipline is applied unevenly, whether that is real favouritism or simply a perception of it, they stop believing the rules mean anything.

That shows up in morale, in willingness to report misconduct, and in how seriously employees take the disciplinary code going forward. A workplace where people believe the rules apply fairly is a workplace where those rules are more likely to be respected.

Getting consistency right is therefore not just about surviving a CCMA or Bargaining Council challenge. It is about running a disciplinary process that employees respect, that managers can apply with confidence, and that holds up to scrutiny without depending on who happens to be chairing the hearing that day.

What Do We Actually Mean by “Consistency”?

Strip away the legal jargon and consistency comes down to a fairly simple idea: treat like cases alike.

If two employees commit essentially the same offence under essentially the same circumstances, the employer should not apply substantially different standards or sanctions without a justifiable reason.

The principle is well established in South African labour law. The courts have described consistency as an element of disciplinary fairness and have recognised the importance of treating employees according to the same standards, while also allowing flexibility where the circumstances of individual cases genuinely differ.

It is important, however, to distinguish the historical legal wording from the current position. The former Schedule 8 Code of Good Practice: Dismissal stated that an employer should apply dismissal consistently with how it had been applied to the same and other employees in the past, and consistently between employees involved in the same misconduct. That Schedule 8 Code was replaced by the new Code of Good Practice: Dismissal, which came into effect on 4 September 2025. The current Code contains specific guidance on consistency when determining whether a dismissal for misconduct is fair.

Labour law recognises two useful dimensions of this principle, and mixing them up is a common mistake.

Historical Consistency

This is about time.

If an establishment has, over the years, dealt with a particular type of misconduct, say falsifying timesheets, by issuing written warnings, an employer should be cautious about suddenly dismissing the next employee who commits essentially the same misconduct without having communicated a change in its approach.

Employees are entitled to some predictability about how the rules of the workplace will be enforced. At the same time, an employer is not required to repeat a genuinely wrong decision indefinitely simply because it was made in the past. The courts have recognised that an employer cannot be expected to continue repeating a wrong decision in the name of consistency. Where an approach is changing, employees should be made aware of the change in advance.

Contemporaneous Consistency

This is about employees involved in the same or related misconduct at the same time.

When a group of employees is involved in the same act of misconduct, for example a group that walks off the job together, or employees who participate in a fraudulent claim, the employer should assess each employee against the same standards.

That does not necessarily mean that every employee must receive an identical sanction. If there are material differences in their roles, level of participation, personal circumstances, disciplinary records or the seriousness of their conduct, those differences may justify different outcomes.

The important point is that the difference in treatment must be capable of being explained by genuine differences in the circumstances, rather than favouritism or arbitrary decision-making.

A Crucial Distinction: Consistency Does Not Mean Identical Punishment

Here is where a lot of people, employees and even some chairpersons included, get tripped up. Consistency does not guarantee identical outcomes.

Consider two employees found asleep on duty. One works in an environment where falling asleep does not create an immediate safety risk; the other is responsible for the safety of the establishment. Both may have broken the same rule, but the seriousness and consequences of the misconduct may be very different.

A fair outcome could therefore see one employee receive a warning while the other faces dismissal, without the decisions necessarily being inconsistent.

The sanction should reflect the individual circumstances. These may include the employee's length of service, disciplinary record, personal circumstances, the nature of the job, the seriousness of the misconduct and any mitigating or aggravating factors relevant to the particular case.

Consistency does not ask an employer to ignore all of that in favour of a rigid, one-size-fits-all penalty.

The courts have repeatedly recognised this flexibility. In Government Printing Works v Mathala N.O. and Others, the Labour Court emphasised that consistency requires a proper comparison of the circumstances of the employees concerned and that genuine differences, particularly differences in the gravity of the misconduct, can justify different outcomes.

What the Courts Have Said

South African case law has shaped this area considerably, and the common thread running through it is that consistency is an important factor in determining fairness, but it is not a rule that decides every case on its own.

In SACCAWU and Others v Irvin & Johnson Ltd (1999), the Labour Appeal Court explained that consistency is an element of disciplinary fairness and that some degree of inconsistency can arise from the flexibility required when individual cases are assessed on their own facts. The court also recognised that an employer cannot necessarily be required to repeat an earlier wrong decision.

A chairperson who honestly but mistakenly under-punishes one employee does not automatically give every future offender a free pass. A wrong decision may become unfair in its application to other employees where the inconsistency is capricious, driven by improper motives or linked to discriminatory management practices.

ABSA Bank Ltd v Naidu & Others (2015) built on this in practical terms that matter to employers today. The fact that one employee escaped dismissal in the past does not give every future wrongdoer a licence to misbehave. The Labour Appeal Court emphasised that consistency is an important factor, but it is not decisive on its own. The parity principle was not intended to encourage anarchy in the workplace.

On the other side of the coin, Metsimaholo Local Municipality v South African Local Government Bargaining Council and Others (2016) shows what can go wrong when inconsistency is left unaddressed. Two employees were dismissed for engaging in private electrical work, while approximately 18 other employees had engaged in the same conduct and were not disciplined. The Labour Appeal Court found that the employer had failed to provide a reasonable and rational explanation for the different treatment. The inconsistency was one of the factors contributing to the finding that the dismissals were unfair.

The lesson for employers is not that every employee who commits similar misconduct must automatically receive the same sanction. It is that selective discipline must be capable of being justified by evidence and the circumstances of the individual cases.

The Employee Must Establish a Proper Comparison

An employee who raises inconsistency as a defence in a disciplinary hearing cannot simply gesture vaguely at “others who got away with it”.

The employee should identify the comparator, describe the relevant incident and provide sufficient information to explain why the two situations are genuinely comparable.

The courts have emphasised that an employee alleging inconsistency must provide an adequate evidentiary basis for the comparison. Merely naming another employee and stating that the employee received a different sanction is not enough.

Once a proper comparison has been raised, the employer should be in a position to explain the difference in treatment, ideally with documentary evidence such as disciplinary records, previous hearing records and the reasons for earlier sanctions.

If the employer can point to an objective distinction, for instance that the comparator admitted guilt while the employee in the current matter denied the misconduct, or that the offences were not actually equivalent in severity, the inconsistency argument may not succeed.

Magumbo v Nkomati Joint Venture and Others (2015) and Government Printing Works v Mathala N.O. and Others (2016) reinforce the importance of properly substantiating an inconsistency allegation rather than relying on unsupported comparisons.

And if the employer genuinely had no knowledge of the earlier incident an employee relies on as a comparator, that may be relevant to whether inconsistency can properly be established. An employer cannot reasonably be expected to have applied discipline to conduct of which it was unaware.

Practical Steps for Getting This Right

A few practices go a long way towards protecting an employer against valid inconsistency claims, and towards building a disciplinary process employees actually trust.

1. Write clear disciplinary codes

Set out what conduct is prohibited and, where appropriate, the likely range of sanctions. Make sure employees know and understand the rules.

2. Keep proper records

Minutes of disciplinary hearings, previous sanctions, the reasons for those sanctions and any mitigating or aggravating factors considered should be documented. These records provide an important reference point when future cases arise.

3. Centralise oversight where possible

In multi-site establishments especially, having chairpersons consult HR or the person responsible for disciplinary policy before finalising a sanction can help identify materially different outcomes in similar cases. This does not mean removing the chairperson's responsibility to make an independent decision.

4. Communicate policy changes before enforcing them

If the establishment is tightening its approach to conduct that was previously treated more leniently, communicate the change to employees clearly and in advance. Do not allow the new standard's first appearance to be at someone's dismissal hearing.

5. Train chairpersons properly

Chairpersons need to understand not just the rules, but the reasoning behind consistency. They must be able to distinguish a genuinely comparable case from one that only looks similar on the surface.

6. Record reasons for any deviation

If a chairperson departs from what has been done before, the reasons for that departure should be explained and documented at the time. Do not try to reconstruct the reasoning after a dispute arises.

7. Address known errors appropriately

If a past sanction was clearly a mistake, employers should consider how that decision will affect future cases and communicate any change in approach where appropriate. Where a serious disciplinary issue arises, obtain appropriate labour-law advice before attempting to revisit a concluded matter.

Getting the Balance Right

Consistency in workplace discipline is not about running every case through an identical formula and producing an identical punishment.

It is about making sure employees facing genuinely comparable misconduct are assessed against comparable standards, and that any differences in outcome can be explained by real, defensible differences in the facts, rather than favouritism, oversight or arbitrary decision-making.

For employers, this is worth getting right the first time. A consistent, well-documented approach protects the establishment from costly disputes, gives managers the confidence to act decisively, and builds a workforce that believes the rules are applied fairly.

Get the process right, document your reasoning, and be prepared to explain any departure from past practice. Inconsistency then becomes something an employer can properly address in a disciplinary hearing, because there is an evidence-based answer for why the decision was made.