The Code of Good Practice – Dismissal (item 3(6) specific) provides that an employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
One of the basic principles of natural justice is that two persons guilty of similar misconduct should be disciplined in similar ways. In labour law, this rule has come to be known as the “parity principle”. Applied in the workplace, the parity principle simply means that an employer must be consistent in the application of discipline. Where two employees have engaged in the same or similar misconduct, whether contemporaneously or sequentially, they should, ceteris paribus (all other things being equal), have meted out to them the same punishment. In many cases, employers have, on the basis of this principle, been held to have acted unfairly by dismissing certain employees and imposing lesser penalties on others. When employers are accused of breaching the parity principle, they normally plead either that the misconduct was different, or that the employees’ degree of culpability cannot be compared, or that the personal circumstances of the accused employees differed, or that some action (be it a warning or general rule) had been taken that precluded the employee from relying on earlier leniency.
There is considerable tension between the principle of parity and other demands on employers in the disciplinary context, such as the requirements that each case must be treated on its own merits, the discipline should be applied flexibly, and that the personal circumstances of offending employees must be taken into account when deciding on sanctions.
Does this then mean that employees guilty of serious misconduct escape the consequences of their misconduct simply because their co-employees were not disciplined or dismissed? Consistency is simply an element of disciplinary fairness and therefore every employee must be measured by the same standards. Discipline must not be capricious. It is really the perception of bias inherent in selective discipline that makes it unfair. Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises their discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that their assessment of the gravity of the disciplinary offense was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy. Fairness is a value of judgement and consistency is not a rule unto itself.
Comments