Author: Vishanya Deeplall
“We treat all our employees fairly.”
A statement frequently made by employers, but what does fairness actually mean when it comes to workplace discipline? Does fairness mean every employee who commits the same offence must receive exactly the same sanction? South African labour law makes it clear that consistency is a key element of disciplinary fairness, but consistency is not the same as identical treatment.
What does South African labour law require?
The Labour Relations Act 66 of 1995 (LRA), together with the Code of Good Practice: Dismissal in Schedule 8, requires employers to approach disciplinary matters fairly.
When dealing with misconduct, Item 7 of Schedule 8 requires employers to consider:
- Whether the employee contravened a valid and reasonable workplace rule
- Whether the employee knew, or could reasonably have been expected to know, the rule
- Whether the rule has been applied consistently
- Whether dismissal is an appropriate sanction in the circumstance
This raises an important question. Are disciplinary rules being applied consistently across the organisation, or does the outcome depend on which manager handles the case?
Does consistency mean identical disciplinary outcomes?
Not necessarily. Imagine two employees commit substantially the same misconduct. One receives a written warning, while the other is dismissed. If there are no meaningful differences between the two cases, the employer may struggle to justify why the outcomes were so different.
The Labour Appeal Court addressed this issue in SACCAWU & Others v Irvin & Johnson Ltd (1999), confirming that consistency is an element of disciplinary fairness and that employees should generally be measured against the same standards. However, the Court also recognised an important principle: consistency does not require every employee to receive exactly the same sanction. Each case must still be assessed on its own facts. This distinction is critical.
When are different sanctions justified?
Fairness does not necessarily mean identical treatment. It means any difference in treatment should be objectively justifiable. For example, two employees may commit the same offence, but relevant factors to consider could include:
- A previous disciplinary record
- Length of service
- Level of responsibility
- The seriousness of the misconduct
- The circumstances surrounding the incident
- The impact of the employee’s conduct
These factors can legitimately influence the appropriate sanction. The Labour Appeal Court reinforced this approach in Cape Town City Council v Masitho & Others (2000), recognising that employees involved in similar misconduct should generally receive similar treatment unless material differences justify a different outcome.
Why inconsistent discipline creates legal and workplace risks
The real danger is not simply different outcomes – rather, it’s unexplained or selective discipline. When employees see similar misconduct producing very different consequences, they may conclude that:
- Certain employees receive preferential treatment
- Managers apply rules based on personal preference
- Relationships influence disciplinary decisions
- The process is unfair rather than objective
These perceptions can damage trust, undermine workplace morale, and increase the risk of grievances, CCMA disputes, and unfair dismissal claims.
How HR can promote disciplinary consistency
HR’s role extends far beyond drafting charges or arranging disciplinary hearings. A strong HR function helps organisations by:
- Identifying patterns in disciplinary decisions
- Training managers on disciplinary procedures
- Maintaining records of previous disciplinary outcomes
- Encouraging decision-makers to consider comparable cases before imposing serious sanctions
- Ensuring sanctions can be properly justified where circumstances differ
Importantly, consistency does not require employers to repeat past mistakes. As recognised in SACCAWU v Irvin & Johnson, an employer is not obliged to perpetuate an incorrect or overly lenient decision simply because it happened before. What matters is that disciplinary decisions are made honestly, rationally, fairly, and without arbitrary or discriminatory motives.
The question every employer should ask
Ultimately, workplace discipline is not simply about punishment. It’s about maintaining workplace standards while ensuring employees are treated fairly and consistently.
Instead of asking: “Do we have a disciplinary policy?”, employers should ask: “Are we applying that policy fairly and consistently?”
Employees do not expect every disciplinary matter to end with the same sanction, but they do expect the rules to apply fairly. South African courts have repeatedly recognised that consistency is an important element of disciplinary fairness and that selective or arbitrary discipline can create a perception of bias.
Perhaps the most important question for HR therefore is not: “Did we discipline the employee?” but rather:
“Would we have made the same decision if this were a different employee?” If the answer is no, it may be time to look beyond the disciplinary charge and examine the fairness of the process itself. Because workplace discipline should not simply enforce the rules, it should reinforce trust in the rules.
A disciplinary system earns credibility when the rules apply to everyone and where differences in treatment exist, there is a legitimate, defensible reason for those differences.
Contact our team today with any HR question you may have.