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HISTORICAL AND CONTEMPORANEOUS INCONSISTENCY IN DISCIPLINARY MATTERS

“Inconsistency is often either historical or contemporaneous. “Historical inconsistency” is where a company has had a number of employees who have all committed the same act of misconduct at different times and those employees have not been measured by the same standard – the same disciplinary procedure has not been applied. Thus, historical consistency – would show that in the past, each time the same act of misconduct was committed by different employees, the employer applied the same standards of measurement and followed exactly the same disciplinary procedure in each case.


“Contemporaneous consistency” means, very simply, “collective consistency”. To break this down even further, it means that in instances of collective misconduct, where a number of employees have committed an act of misconduct at the same time, each employee involved in that collective act must be treated the same and by the same standard, and the same procedure must be applied to all.


Contemporaneous inconsistency would come about when two or more employees have committed the same act of misconduct at the same time, but not all are subjected to disciplinary action. Or where some would be subjected to a certain disciplinary procedure and a different disciplinary procedure would be invoked for others.”


CCMA, Bargaining Councils and Courts say on Inconsistency –

Employees relying on an alleged breach of the “parity principle” must have been subjectively aware of the alleged inconsistency at the time of the commission of the alleged misconduct and must prove that the case on which they relied was comparable to their own. Inconsistency is regarded as unfair when it indicates bad faith or arbitrariness on the part of the employer. Inconsistency does not however necessarily imply that some unfairness occurred. Inconsistency would only point to the possibility of unfairness. The inconsistency must be arbitrary in order to constitute unfairness. The first point to be proved in support of a “historical” inconsistency challenge is that the earlier case relied upon is comparable to that of the employees on behalf of whom the point is raised.



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