Consistency in the application of workplace discipline is a fundamental requirement of substantive fairness under South African labour law. Despite this, employers sometimes deviate from established disciplinary outcomes to exercise leniency or accommodate operational considerations. While such decisions may be well-intentioned, inconsistent disciplinary action can expose employers to significant legal risk. The failure to apply disciplinary sanctions consistently for the same or similar misconduct often undermines the fairness of a dismissal and may result in adverse findings at the CCMA or Labour Court. This article examines the principle of consistency in disciplinary action, with reference to recent case law that illustrates the serious consequences employers may face when this principle is not properly applied.

Consistency in Terms of the Labour Relations Act

The Code of Good Practice: Dismissal (as published under the auspices of the Labour Relations Act 66 of 1995) provides clear guidance on consistency in disciplinary matters where dismissal is contemplated, and states that an employer should apply the sanction of dismissal consistently:

with the way it has been applied to the same employee in the past;
with the way it has been applied to other employees; and
between two or more employees who participate in the same misconduct.

While the LRA requires consistency, the courts have repeatedly emphasised that this does not mean rigid uniformity. Each case must still be assessed on its own merits, and employers may justify different treatment where there are material differences in circumstances.

Case Studies

In Cashbuild SA Ltd v Mamogale N.O and Others (JR546/2023) [2025] ZALCJHB 572 (3 December 2025), the Labour Court reaffirmed the principle that fairness requires like cases to be treated alike. The employee was dismissed for gross negligence after authorising an incorrect petty cash payment. At the time, she had a valid final written warning on file for the same offence. Before the CCMA and the Labour Court, the employee argued that the employer had acted inconsistently in dealing with petty cash discrepancies. Evidence showed that while some employees were allowed to repay shortages out of their own pockets, others, including the employee, were subjected to formal disciplinary action. The Court reiterated that employers may not act capriciously or arbitrarily when applying discipline. Comparable misconduct should attract comparable sanctions, unless a rational and fair justification exists for different treatment. As a result, the dismissal was found to be substantively unfair. The employee was reinstated, and the employer was ordered to pay her legal costs.

In National Union of Mineworkers obo Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC) (15 May 2014), the Labour Court relied on the Labour Appeal Court judgment in Botsane v Anglo Platinum, which remains a leading authority on inconsistency in discipline. The Court held that inconsistency arises from the unfairness of treating like cases differently and represents a rejection of arbitrary or capricious conduct by an employer. It applies in two key respects:

where one employee is disciplined for misconduct that is condoned when committed by another employee in materially similar circumstances; and
where different sanctions are imposed for indistinguishable misconduct without a fair and rational basis.

Conclusion

Consistency and fairness are inseparable in the context of workplace discipline. Even well-intentioned decisions, such as giving an employee “another chance”, can expose an employer to significant legal and financial risk if applied inconsistently. Employers are therefore encouraged to approach disciplinary decisions with careful consideration, ensuring that similar misconduct is treated consistently, unless a defensible and lawful reason exists to justify a different outcome.