By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
The central principle guiding South African labour law is fairness. And a key component of fairness in our law is consistency. Generally, where two employees commit the same or similar offence they should both receive the same discipline unless there is a rational reason for the differentiation. For example, if the employer fires some employees and not others for an offence, this could be justified if the reason for the inconsistency is that the dismissed employees had recently been disciplined for a similar offence, perhaps via a final warning.
However, where there is no such solid justification for the inconsistency the employer is likely to lose because item 3.(1) of the Code of Good Practice: Dismissal (the Code) in Schedule 8 of the Labour Relations Act (LRA) clearly requires employers to be consistent when dismissing employees.
This consistency principle is often inconvenient for employers because they prefer to be far more lenient towards key employees or those that are favoured by top management. In the case of the City of Cape Town vs SAMWU obo Mkhululi Mlungwana (Lex Info 19 February 2026. Labour Court case No: C675/2023) the employee was fired for falsifying his overtime claim by 14 minutes. While the bargaining council arbitrator accepted that this was dishonest, she rejected the employer’s claim that this conduct had destroyed the trust relationship. She reached this conclusion not due to the fact that the degree of falsification of the claim had been low but because the employer had failed to dismiss the employee’s supervisor who had committed the very same offence.
On review the Labour Court found the arbitrator’s reasoning to have been sound because, having condoned the supervisor’s misconduct, the employer had tacitly admitted that such dishonesty did not destroy the employment relationship. The Court therefore upheld the arbitrator’s award requiring the employer to reinstate Mlungwana.
This costly outcome makes it clear that those responsible for dismissal decisions must be trained in the law of consistency and in the dangers associated with ignoring the consistency rule.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
