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
Item 3.(1) of the Code of Good Practice: Dismissal (the Code) requires all employers to adopt disciplinary rules that “create certainty and consistency in the application of discipline.” This means that the employer’s rules should be enforced strictly, perpetually and equally unless deviation from such consistency can be fully justified due to genuine operational or other existing circumstances.
In the case of SACCAWU obo Lentsha vs Boxer Superstores (Pty) Ltd (2010, 12 BALR 1294) the dismissal of a cashier was found to be unfair. The cashier had given R1000 to a customer despite the fact that the electronic banking system located at the cashier’s till had rejected the customer’s debit card cash withdrawal request. The employee’s dismissal was found to be inconsistent and therefore unfair because another employee who had made a similar mistake had not been dismissed and because of the dismissed employee’s long service and expression of genuine of remorse. The arbitrator ordered the employer to reinstate the employee.
In the case of Westonaria Local Municipality vs SALGBC and others (2010, 3 BLLR 342) the employee was dismissed for having falsely claimed, at her pre-employment interview, that she had achieved matriculation. However, it was established that another employee had been forgiven for having submitted a false matriculation certificate as part of her job application. The bargaining council arbitrator found that:
- this constituted inconsistency on the employer’s part;
- the failure to dismiss the other employee indicated that such dishonesty does not necessarily destroy the trust relationship; and
- the dismissal was therefore unfair.
The employer was ordered to reinstate the employee. The employer then took the matter on review to the Labour Court which upheld the arbitrator’s finding.
In the case of Europcar South Africa Vs Pumeza Glenn-Poswa (Lex info 10 December 2025. Labour court case number JR 699/23) The employer fired the employee for using a company vehicle for private purposes. The disciplinary code provided for dismissal for such dishonest conduct.
The arbitrator found against the employer despite the fact that the employee had not denied using the vehicle for private purposes. This was because the employee had a clean disciplinary record and that the offence had not destroyed the employment relationship. The rule was that employees could only use company vehicles privately if they had received permission. However, the evidence had shown that past application of this rule had not been entirely consistent. The arbitrator had also found that the employer had not lost anything due to the employee’s conduct because the vehicle had not been needed for business purposes at the time the employee had misused it. The Court therefore upheld the arbitrator’s finding that the dismissal had been unfair.
The above should be seen as a warning to employers that, in order to avoid flouting the complex principles of consistency, they should train their workplace managers in ensuring that the lines of rule implementation do not get so blurred that consistency and clarity suffer. Managers also need training on assessing objectively whether act of misconduct truly destroy the employment relationship.
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 necessary 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
