Time and again, we see cases coming through the employment law forums, in South Africa that hinge on the consistency of actions performed by employers. The case of JDG Trading (Pty) Ltd t/a Supply Chain Services v Myhill NO and Others (JR958/16) [2018] ZALCJHB 287 (11 September 2018) is one such matter.
The employee was dismissed for misappropriation of company funds. He used the company credit card for purchases – in the amount of R1028.40 – that he was not entitled to.
The Commissioner however held that the employee’s dismissal was unfair. In coming to the decision, he cited NUM and Others v Amcoal Collieries and Industrial Operations Ltd in which it was held that a historical inconsistency occurs where an employer has, in the past and as a matter of practice, not dismissed employees or imposed a specific disciplinary sanction for contravention of a specific disciplinary rule but then decides to punish the contravention.
In the Labour Court (LC) a review concluded that an employer can act inconsistently by not enforcing a rule at a prior point in time only to enforce it thereafter without warning the same employee. The Court found that the overwhelming probabilities are that the employee was not only fully aware of the existence of the policy (which is common cause) but that he “took chances” contravening it and “got away” with it for a while. This can never equate genuine bona fide belief that a policy is no longer applicable or not regarded as serious based in the inconsistent application of the policy by the employer.
The LC found that the Commissioner took no account of the fact that the employee testified that the trust relationship between the parties had broken down. The arbitrator had failed to appreciate that consistency is an element of a fair dismissal and not a rule. He failed to take account of other relevant factors, including the evidence of the employer relating to the trust relationship as well as the fact that – instead of accepting responsibility for his actions -the employer preferred to base his case on the failure of his managers to take action.
The court concluded that the dismissal of the employee was substantively fair.
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Consistency in your workplace policies is absolutely crucial to maintain. If you don’t have this you won’t have a foundation on which to build your workplace culture.
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