Home Forums Labour Law Debate CAN INCONSISTENCY BE FAIR?

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    Ivan Israelstam

    Is it fair for discipline for substance abuse to be harsher on employees who operate heavy machinery compared to discipline of employees who do not operate such machinery? And, would the answer to this question be different in a workplace that has a zero tolerance policy?

    Ali Ncume

    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.

    Patrick Deale

    Yes – I agree with Ali that it would be fair to give a harsher sanction to an employee who operates heavy machinery than to a fellow employee does a less risky job. Context matters.

    However, a zero tolerance rule for the type of misconduct, regardless of the risk factor, would enforce the parity principle. This would justify the same harsh sanction for all offenders of the zero tolerance rule.

    Ingrid Lewin

    I totally agree with Ali. The latest ruling from the Labour Court in this regard lends support to it. See NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022) which held that it does not matter that employees used dagga in private, that they posed no danger on the day they tested positive for dagga, that their period of employment was not insignificant or that they had a clean disciplinary record. Where the employer has consistently applied a ‘Zero Tolerance’ alcohol and drug policy due to its hazardous workplace and its duty to provide a safe working environment, dismissal will be fair.

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