Consistency relates to the requirement that like offences, or acts of misconduct, should be treated alike, and different cases treated differently.  This principle is also sometimes referred to as the parity principle.  Whilst it is important to be consistent, this should not be confused with being rigid.

Consistency is typically assessed in three ways.  Firstly, an employer may not suddenly discipline an employee for an act which was overlooked in the past. There is however nothing wrong with an employer becoming stricter, with regard to certain issues, as long as employees are informed of the Company’s intentions in this regard.

Secondly, all employees guilty of a breach in Company rules should be charged; this means that discipline should not be instituted selectively against employees.  Finally, all employees charged should be disciplined in the same way; put differently, generally speaking, if two employees are guilty of the same act of misconduct, they should, in theory, receive the same sanction.

In the  Labour Appeal Court case of Absa Bank v Naidu and Others,  it was held that “It is trite that the concept of parity, in the juristic sense, denotes a sense of fairness and equality before the law, which are fundamental pillars of the administration of justice. In the Australian decision, Green v The Queen, it was said that the parity principle is an aspect of the systemic objectives of consistency and equality before the law the treatment of like cases alike, and different cases differently”.

The concept of consistency (the parity principle) was also addressed in National Union of Metalworkers of SA and Others v Henred Fruehauf Trailers (Pty) Ltd (1994), where the court stated that  “Equity requires that the courts should have regard to the so-called parity principle. This has been described as the basic tenet of fairness which requires that like cases should be treated alike  …… it has been held by the English Court of Appeal that the word equity as used in the United Kingdom statute dealing with the fairness of dismissals, comprehends the concept that the employees who behave in much the same way should have meted out to them much the same punishment”.

Learned author Professor Grogan has also noted that “The parity principle should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different disciplinary officers had different views on the appropriate penalty”.

A word of caution in the application of consistency in disciplinary proceedings was made in SACCAWU and Others v Irvin and Johnson (Pty) Ltd 2002 (3) SA 250 (LAC) “In my view too great an emphasis is quite frequently sought to be placed on the principle of disciplinary consistency, also called the parity principle.  There is really no separate principle involved. consistency is simply an element of disciplinary fairness.  Every employee must be measured by the same standards.  Discipline must not be capricious. It is really the perception of bias inherent in selective discipline that makes it unfair. Where, however, one is faced with a large number of offending employees, the best one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness to the other employees. It would mean no more than his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy.  Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not necessarily mean that the other miscreants should escape. Fairness is a value judgment”.