625 Inconsistency as an element of fairness

Description

NOTE: THIS IS THE ARTICLE ON WHICH THE COURSE IS BASED.

This article discusses and explains the law and best practice with regard to the requirement of our law that an employer act consistently with regard to the application of its rules and standards and in the sanction applied for misconduct.

Pages 14 Words 6099 Author: Sean Molony

Article contents

Module 1.         Introduction  

• Code of Good Practice: Dismissals
• CCMA Guidelines on Misconduct Arbitration
• Two contexts?

Module 2.         The law

• Principle or an element of fairness
• The history

Module 3.         Forms of inconsistency

• Historical inconsistency
• Changes to workplace rules and standards
• Contemporaneous inconsistency

Module 4.         The onus and the process explained 

• The onus
• When does the issue of inconsistency arise?
• Who must raise the issue, and when?
• How to place inconsistency in dispute, and when

Module 5.         How allegations of inconsistency can be justified or defended 

• Personal circumstances, length of service, disciplinary record
• Identification
• Differing managerial roles
• Admission of guilt
• Mass dismissal-reasonable consistency is sufficient
• Forwarding email
• Final written warning: strike context
• Dishonesty
• Employee not present
• Collective misconduct

1. The test for inconsistency  

• A cautionary note
• The general rule?

1. Other  examples from case law
2. Summary   
3. Conclusion