Employers are generally required to behave consistently when dealing with transgressors.

The employer's rules must be applied consistently, that is, where sufficient evidence exists, action must be instituted against transgressors in accordance with the employer's disciplinary code and procedure. Yet, consistency does not mean that all employees who are found guilty of a particular transgression must all receive the same sanction, as different aggravating or mitigating factors may apply.

The question arises whether an employee's truthfulness may justify different sanctions for the same transgression. Should the fact that employees show remorse be taken into consideration in determining appropriate sanctions?

These were two of the issues considered in the matter of Numsa obo Skhalipi and others/Guestro Forging and Machining (2009) 9 BALR 880 (MEIBC).

Thirteen employees were charged with consuming alcohol while working night shift.

During the disciplinary hearing all except two of the employees denied that they had consumed alcohol. These were the "whistleblower" in the matter (a certain Jansen) and a certain Jacobs. All the employees were dismissed, save Jacobs and Jansen, who pleaded guilty and were given final written warnings. Before the MEIBC the 11 dismissed employees argued that the employer had been inconsistent in applying the sanction of dismissal.

The employer in this matter differentiated between the 11 employees and Jansen and Jacobs on the basis that the latter had assisted in the inquiry; they did not lie; they were open about their involvement in the events; and they had shown true remorse for their actions.

The arbitrator was of the opinion that remorse could be inferred from an admission of guilt and in assisting in an investigation. The arbitrator stated that: "Even if the element of remorse is omitted from the equation, I find a significant distinction between Messrs Jansen and Jacobs on the one hand and the applicants on the other hand and that is the former were truthful about the incident, whereas the applicants persisted in their lies and denials."

The arbitrator held that the differentiation between the applicants and Jansen and Jacobs was not capricious, unreasonable or arbitrary.

As authority for his findings, the arbitrator, among others, referred to the matter of Saccawu and Others v Irvin & Johnson Ltd (1999) 8 BLLR 741 (LAC), as well as articles by some labour law experts. The following guidelines may be used when faced with the issue of consistency in sanction:

The so-called "parity principle", which requires consistency in the application of sanctions, should not be used too rigidly.

When deciding on whether the parity principle applies, a court or arbitrator should not lose sight of the gravity of the misconduct committed.

Where a disciplinary officer errs on the side of leniency, the employer need not be burdened by that error to the extent that the employer has to reinstate or compensate employees who, viewed independently, deserved dismissal.

Parity is just one of the factors to consider in determining whether a particular sanction is fair.

Huysamen is an admitted attorney and consultant at Maserumule Consulting. Call 021 914 3321 or e-mail elsabe@masconsulting.co.za