14/02/2025
(IN)CONSISTENT APPLICATION OF DISCIPLINE
In SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & Others (2024) 45 ILJ 1077 (LC), the employee, the operations manager at SARS, was dismissed for gross negligence relating to nine fictitious consignment transactions, with an approximate value of R 680 000.00, captured or processed on SARS’s computer system, over a period of 11 months, with the employee’s unique number and password.
In unfair dismissal proceedings before the CCMA, a commissioner found the dismissal to be substantively and procedurally unfair and ordered the employee’s retrospective reinstatement and compensation. In review proceedings before the Labour Court, SARS argued inter alia that the commissioner wrongly relied on the inconsistent application of discipline when determining the appropriate sanction.
The Labour Court reiterated the principles used by the courts when dealing with challenges based on inconsistent application of discipline:
(1) the employee must set out the basis of the inconsistency by disclosing the name of the employee concerned (the comparator) and the circumstances of the case so that the employer can properly respond to the allegation;
(2) employees must be measured against the same standards and similar circumstances;
(3) the chairperson of the disciplinary enquiry must conscientiously and honestly determine the misconduct;
(4) discipline must not be capricious or induced by improper motives or by a discriminating management policy;
(5) the gravity of the misconduct should receive serious consideration;
(6) fairness is a value judgment; and
(7) inconsistency is not a rule unto itself — it is an aspect of disciplinary fairness.
The Labour Court found that the commissioner justifiably found that the employee had been correctly charged, and that SARS had discharged its onus and proved its case. The commissioner had also properly construed the nature of the charge and had an appreciation of its gravity and found that dismissal was generally the appropriate sanction for gross negligence. Regarding the inconsistency argument, the Labour Court stated the following at paragraphs 18 and 19 of its judgement:
“[18] …. However, it is in considering inconsistency and the appropriate sanction that the second respondent (the commissioner) goes off on a tangent. He finds that the applicant (SARS) has on two previous occasions meted out a final written warning for gross negligence and finds that dismissal is not an appropriate sanction because the third respondent (the employee) was not charged for dishonesty. The applicant contended before the second respondent that the cases of the two comparators are distinguishable.
[19] The second respondent does not engage with this. He failed to take into account the gravity of the charge and the circumstance that the third respondent was a manager. He also failed to take into account that the third respondent showed no remorse for failing to adhere to the rule or policy of the applicant nine times over a period of almost a year, with huge financial implications for the applicant. He concludes that, because the applicant failed to dismiss its employees for gross negligence, it should live with the consequences. He misapplies the parity principle as it is one of the factors to take into consideration in determining whether dismissal is the appropriate sanction and not the sole determining factor. Having grappled with the parity principle and misapplying it as indicated, he is out of kilter with his previous finding and finds the third respondent guilty of negligence, notwithstanding that the charge was gross negligence, which he was fully aware of.”
The Labour Court was satisfied that the commissioner had committed an irregularity, which distorted the outcome of the disciplinary enquiry, and accordingly the award was reviewed and set aside.
