According to section 7 of Schedule 8 of the Labour Relations Act: Code of Good Practice: Dismissal, you need to be very careful to apply your company’s rules, policies and procedures consistently. This is because if an employee is dismissed owing to non-adherence to these policies and procedures, and you’ve been seen not to apply your disciplinary policy consistently, the dismissal could be ruled to be unfair. This is what the plaintiff, in the case of South African Pelagic Fisherman’s Union obo AF Mouton v Lucky Star Operations (A division of Lucky Star Ltd)  3 BALR 332 (CCMA), contended.
Facts of the case
- The captain of a fishing vessel, who was employed by the respondent, sent a message to his crew. The content of the message included the following racist comment: Dis bruin mense se suip dag which, roughly translated, means It’s the coloured people’s boozing day.
- The company charged the captain with “disorderly behaviour” and “destructive conduct” for his racist commentary which is against section 9 of the Bill of Rights as contained in the Constitution of the Republic of South Africa (Act No. 108 of 1996):
- “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
- The captain alleged that the claims against him were unfair as he had apologised to his crew members who had forgiven him. He also contended that the company applied their disciplinary measures haphazardly.
However, during the case it was emerged that this incidence of racist commentary directed at the crew members was not an isolated event. The relationship between the employee and his crew had broken down after this event.
Section 36 of the Constitution states that any fundamental right as set out in Chapter 2 of the Constitution can be justifiably limited. In other words, rights of other people can take precedence over contested rights of another. However, discrimination can never be justified which is why the captain’s dismissal was ultimately seen to be fair.
As can be seen, it is so easy for your employees to allege that you have not applied your company policies and procedures consistently in order to escape a fair dismissal. Global Business Solutions’ Effective Discipline in the Workplace course will teach you how to make the discipline in your workplace ironclad. Follow this link for more information.