- This topic has 1 reply, 2 voices, and was last updated 3 days, 10 hours ago by
.
-
Posts
-
In the case of Sibanye Gold Ltd vs AMCU (Lex Info 5 December 2024, Labour Court case number JR 2643/21) The Labour Court found the dismissal of eight AMCU strikers for possession of dangerous weapons and breaching picketing rules was substantively unfair primarily because the employer had not dismissed NUM members who had committed similar offences.
While the Court admitted that inconsistency is not always a ground for claiming unfairness it reinstated the dismissed employees.
Under what circumstances might the employer have been forgiven by the Court for its inconsistent treatment of the employees concerned?The importance of consistency in dismissal cases arises from item 3.(6) of Schedule 8 of the LRA which says that the penalty of dismissal should be implemented consistently. Despite the word “should” in schedule 8, law enforcers view the principle of consistency very seriously.
This is because legally and logically consistency is a core element of substantive fairness. For example, if A has been dismissed for an offence and B was not dismissed for the very same offence the question as to the fairness of A’s dismissal is called into question. This is because Schedule 8 provides that dismissal must be implemented only as a last resort where it is essential to rectify the employee’s misdeed. However, the fact that B was not dismissed indicates that dismissal was not necessary.
Having said this, if the employer is able to prove that the circumstances of A’s infraction were significantly more serious than those in B’s case it is likely to get away with the inconsistency. in the Sibanye Gold case it appears that there were no differences significant enough to justify the inconsistency.
- You must be logged in to reply to this topic.
