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The Parity Principle: Unfair Dismissals

“I’ve been dismissed, but my colleague who did the same only got a warning. Is that fair?”

The principle of parity is one of the basic tenets of employment law and is an ever-increasing trend for employees in labour disputes. It dictates that two or more employees guilty of similar misconduct should be penalised in similar ways (treat like cases alike). Applied practically, the principle of parity means that employers should be consistent in applying or allotting discipline for the same or similar misconduct done by employees. If one is faced with a large number of offending employees, the best one can hope to achieve is reasonable consistency.

However, the parity principle cannot apply in every situation or be applied as a blanket defence for employees’ misconduct in the workplace. In fact, it should be applied cautiously and the employer should always apply their mind when determining the appropriate sanction. In cases where employers are accused of showing inconsistency in past punishments, they may plead that there were special circumstances involved, which called for harsher or more lenient disciplinary action. These may include the employee’s degree of culpability, the personal circumstances of the employee, and whether the employee showed a pattern of misconduct, which exempted them from leniency.

If an employee has committed a serious offence against the employer and the only defence raised is that of a previous case, where another employee committed a similar offense but received a lenient sanction, it would be wrong for the employer simply to apply that same sanction and overlook the employee’s conduct. Each case should be assessed based on its own merits, the overall factors, and in the spirit of fairness and equality. Where there is a valid basis to distinguish one case from another in circumstances where employees have been involved in the same misconduct with different circumstances, treating those cases differently does not amount to unfair treatment (e.g. Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC)).

This sentiment is supported by a flood of relevant and applicable case law, ranging from as far back as pre-1994 to 2022. This is made evident from National Union of Metalworkers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd, and 20 years later from the Labour Appeal Court (LAC) in Absa Bank Limited v Naidu and Others.

Employees should remember that their degree of culpability or circumstances surrounding the matter, may either be their rope to save them from dismissal or be the rope by which they hang themselves and that the excuse of “But you did nothing when he did the same”, will not always guarantee victory.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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