An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia difference personal circumstances, the severity of the misconduct or on the basis of other material factors [See: Southern Sun Hotel Interests (Pty) Ltd v CCMA and others (2009) 11 BLLR 1128 (LC)].
The parity principle in nature should be applied with caution. Each case should be decided on its own facts and circumstances. The parity principle is not intended to profit or benefit employees who commit serious acts of misconduct. Therefore, the employees who operate heavy machinery, owing to the gravity of their contravention (i.e. higher risk to heath and safety) and surrounding circumstances, may receive a harsher sanction. This would be the same also even if there is a zero tolerance policy.