This is a review application of an arbitration award in an unfair dismissal disciplinary dispute. Lebogang Teteme (“Third Respondent”) was employed as a drill rig supervisor and was dismissed for failing to adhere to safety working procedures. Despite other employees committing the same violation, he was singled out by the employer and dismissed.
The court reiterated the importance of the role of substantive fairness in disciplinary proceedings:
“Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal”.
Factual matrix – The arbitrator’s award:
The court proceeded to scrutinise the arbitrator’s finding that the applicant had inconsistently applied the parity principle in that, it had disciplined the third respondent and dismissed him for an offence (when it did not even charge other transgressors who had committed the same offence on the same occasion).
Having concluded that the dismissal was substantively unfair for failing to apply the rule consistently between the applicant and other transgressors, who committed the same misconduct, the arbitrator found that there was no credible evidence that reinstatement would be impractical or that the trust relationship had deteriorated. Consequently, the arbitrator ordered the reinstatement of the third respondent.
The court found that the arbitrator clearly did consider the issue of consistency to be dispositive of the issue of substantive fairness.
However, it was found that the arbitrator failed to consider several other factors such as that the third Respondent being the supervisor had a higher duty to follow safety procedures and ensure his subordinates did the same. The third Respondent’s conduct undermined the importance of safety procedures within the work place which in turn formed part of his duties and responsibilities as a supervisor.
The arbitrator’s focal point leading to his findings was based on the fact that the employer failed to apply the principle of parity when dismissing the third respondent. This method, failed to consider other relevant and material facts which would have found that the dismissal was in fact substantively unfair and that reinstatement was not the appropriate remedy.
This judgement illustrates that although the parity principle has been described as the basic rule of fairness which requires that similar cases should be treated a like and that employees who behave in much the same way should be dealt with the same punishment, one should still apply parity principle with caution and should consider other relevant factors when reaching decisions/findings.
Written by Ayanda Katjitae and supervised by Heidi Barter, 8 October 2018