The Consistency Trap: Dismissing One Employee and Warning Another

Most employers preparing for arbitration focus on whether the misconduct happened. That is only half the enquiry. Item 7 of the Code of Good Practice: Dismissal, in Schedule 8 to the Labour Relations Act, asks whether the rule has been applied consistently by the employer. If you dismissed this employee but issued a written warning to the last one who did the same thing, the commissioner is entitled to find the dismissal substantively unfair even though the misconduct is common cause. Consistency is not a technicality. It is part of fairness itself.

Two kinds of consistency, and only one of them is forgiving

Our law distinguishes between historical consistency and contemporaneous consistency. Historical consistency asks whether you are treating this employee the same way you have treated employees who committed the same offence in the past. Contemporaneous consistency asks whether you are treating employees involved in the same incident the same way — the four people caught in the same fraud, the eight who took part in the same unprotected strike.

Contemporaneous inconsistency is the harder one to defend. Where several employees are caught doing the same thing at the same time and you dismiss some and keep others, an arbitrator will want a clear, articulable reason for the split. Historical inconsistency is treated with somewhat more latitude — employers are allowed to change their approach over time and to tighten up on a rule that was previously tolerated — but only if the change was communicated before the offence, not announced for the first time in the dismissal letter.

• Historical: how did we treat this offence in previous, unrelated cases?
• Contemporaneous: how are we treating the other employees in this same incident?
• The second one is what most employers lose on.

The parity principle is not a rule of arithmetic

The parity principle does not require identical sanctions for identical charges. It requires that like cases be treated alike — and the whole question is what makes two cases alike. Employees are not interchangeable, and offences that look the same on the charge sheet are frequently not the same offence in substance.

The Labour Appeal Court has been clear that an employer is not obliged to perpetuate an earlier error. If you were too lenient in a previous matter, you are not locked into that leniency forever. But you carry the burden of explaining the difference, and the explanation has to have existed at the time of the decision — not been constructed afterwards for the arbitration.

Differences that actually hold up

There are real distinctions that justify different outcomes, and commissioners accept them regularly when they are recorded and reasoned. What they do not accept is a bare assertion that the cases were different.

• Disciplinary record. One employee had a valid final written warning on file; the other had a clean record. This is the most commonly accepted differentiator — provided the warning was still live. See our note on how long warnings last.
• Degree of participation. The instigator and the follower are not in the same position. Neither is the person who took R40 000 and the person who took R400.
• Length of service and seniority. A supervisor who authorises the falsification of a record carries a higher duty than the junior who completed the form.
• Remorse and admission. An employee who admits the conduct, apologises and offers restitution is genuinely differently placed from one who lies through the hearing.
• Trust relationship. Where the role requires unsupervised handling of cash, stock or vulnerable people, the same conduct can destroy the relationship in one role and not in another.
• Different rules or different eras. A policy revised, communicated and signed for by staff after the earlier case is a legitimate reason for a tougher line.

Where employers actually go wrong

In practice, inconsistency almost never comes from a deliberate decision to treat people differently. It comes from a lack of institutional memory. Discipline is handled by whoever is available: one branch manager issues warnings for absenteeism, another dismisses for it, and neither knows what the other did. Two years later an employee's representative asks the chairperson three questions about a colleague at another site, and the case is effectively over.

The second failure mode is the selective prosecution problem. The employee everyone found difficult is charged; the popular employee who did the same thing is spoken to informally. Even where the misconduct is serious and provable, that pattern reads as targeting, and it converts a misconduct case into a fairness case.

The third is the settlement asymmetry. Employers frequently agree to a mutual separation or a demotion with one employee to avoid a fight, then dismiss the co-accused. The settled employee's outcome becomes the yardstick — and although a genuine without-prejudice settlement is arguably distinguishable, you should assume it will be raised and be able to explain it.

Building the record before you need it

Consistency is an evidence problem more than a legal one. The employer who wins the parity argument is the one who can put a schedule in front of the commissioner showing every instance of that offence over the last three to five years, the sanction imposed, and the reason.

Keep a central disciplinary register — a simple spreadsheet is enough — recording date, employee, offence, sanction, chairperson and a one-line reason. Before any dismissal for a common offence, pull the register and ask the uncomfortable question: have we dismissed for this before, and if not, why is this one different? Write that answer down in the chairperson's finding, at the time. A reason that appears for the first time in cross-examination is worth very little.

• One register, centrally held, covering every site.
• Sanction plus the reason for the sanction, not just the outcome.
• A pre-dismissal check against the register, every time.
• The differentiating factors recorded in the chairperson's written finding.

If you have already been inconsistent

Discovering the problem before the arbitration is far better than discovering it during. If a review of your record shows you have been lenient on an offence you now want to treat as dismissible, the fix is forward-looking: issue a clear written communication to all staff that the rule will from a stated date be enforced strictly and that dismissal is a likely sanction, get acknowledgement of receipt, and then apply it uniformly from that date. A properly communicated reset is one of the few clean ways out of a history of leniency.

Where the inconsistency is already baked into a live matter, be honest about the risk in your settlement assessment. It is usually cheaper to resolve on terms than to run a case in which the employee's representative only has to prove one thing. If you are already at the referral stage, our page on CCMA representation sets out how we approach these matters, and you can read more employer guidance on our Insights index.

Frequently asked questions

Can I dismiss one employee and give another a warning for the same offence?

Yes, but only if you can point to a real difference between them — a live final written warning, a different level of participation, a position of greater trust, or a genuine admission and remorse. The reason must have been part of your decision at the time and should appear in the chairperson's written finding.

Does the parity principle mean I am stuck with a lenient decision I made years ago?

No. An employer is not required to repeat an earlier error indefinitely. But you must communicate the change in approach to employees before the misconduct occurs, and then apply the stricter standard consistently. Announcing the new approach in the dismissal letter will not survive scrutiny.

What happens at the CCMA if my discipline has been inconsistent?

Inconsistency goes to substantive fairness. A commissioner can find the dismissal unfair even where the misconduct is admitted, and order reinstatement with back pay or compensation of up to 12 months' remuneration. In practice it is one of the most common reasons employers lose cases they should have won.

Do I have to treat employees at different branches the same way?

Generally yes, where they are employed by the same employer under the same disciplinary code. Employees are entitled to compare themselves to colleagues elsewhere in the business, which is exactly why a single central disciplinary register matters more than site-level records.

Does a settlement with one employee count as inconsistent treatment of another?

It will be raised. A genuine without-prejudice settlement is arguably distinguishable from a disciplinary sanction, but you should be prepared to explain why the two employees were differently placed on the merits, not merely that one of them agreed to go quietly.

This article is general information on South African labour law and is not legal advice on your specific situation. Speak to us about your facts.