Consani Engineering (Pty) Ltd v CCMA & others (2004) 25 ILJ 1707 (LC)
An employer sets the standard of discipline and has the right to determine the sanction for non-compliance. Only if there is a striking disparity between the employer's sanction and the one the commissioner would have imposed should the commissioner interfere. The requirement of inconsistency is not a hard and fast rule. Flexibility in adapting to a changing environment is equally important.
The company had been experiencing significant stock losses through theft by employees and notified employees that it was adopting a zero-tolerance approach to theft. An employee was caught in unauthorized possession of a roll of rubber tape. Despite the tape being scrap, the employee expressing remorse and being a sole breadwinner, the company dismissed him in terms of the zero-tolerance policy. The CCMA commissioner found the sanction too severe and reinstated him. The Labour Court recognised that many would regard the sanction of dismissal for a single act of irrationality to be too harsh, but said that the court was required to assess the justifiability of the sanction in the light of the employer's entitlement to set its own standards of conduct in the context of that business. The court upheld the dismissal.
Extract from the judgment:
[at 1714G] The employer sets the standard and has the right to determine the sanction with which non-compliance with the standard will be visited... There is a range of possible sanctions on which one person might take a view different from another without either of them being castigated as unreasonable. If the sanction falls within a range of reasonable options a commissioner should generally uphold the sanction, even if the sanction is not one that the commissioner herself would have imposed. Only if there is a striking disparity between the employer's sanction and the one the commissioner would have imposed should the commissioner interfere.
[at 1715C] The requirement of inconsistency is not a hard and fast rule... Flexibility in adapting to a changing environment is equally important. Shifts in policy inevitably introduce standards not consonant with past practices. The applicant's change in policy to one of zero tolerance can be fairly regarded as a legitimate modification of the operational means for protecting the company from ongoing stock losses. Any ensuing element of inconsistency cannot be considered to be arbitrary or in bad faith in the circumstances.