Subscriber's Query .....
An employee was dismissed for assault and proved inconsistency because
two other employees were given final written warning for the same offence - can he succeed?
Worklaw's Response ......
The recent LAC judgment of Ethekwini Municipality v Hadebe and Others (DA17/14)  ZALAC 14 (10 May 2016) confirmed that a dismissal was subtantively unfair solely on the basis of inconsistency. In a Worklaw newsflash article on this judgment we developed certain guidelines that aim to ensure inconsistency isnt a problem, and I reproduce these below:
1. There should be sound reasons for distinguishing one case from another.
2. Sound reasons may be based on factors such as -
2.1 the magnitude of the offence;
2.2 an employee's past record and length of service;
2.3 the nature of an employee's job;
2.4 an employee's level of seniority;
2.5 an employee's personal circumstances in relation to work;
2.6 the circumstances of the offence, including whether remorse was shown, provocation, coercion, use of racist or insulting language, and the presence / absence of dishonesty.
I suggest using the above criteria to motivate why you have not been inconsistent - eg the latest assault was more serious, its effect on reporting relationships, the reason for the assault etc etc
If, based on the facts of your case, the above doesn't help you, then have a look at the following 2 cases on Worklaw:
Absa Bank Limited v Naidu and Others (DA 14/12)  ZALAC 60 (24 October 2014 )
Consistency on the part of an employer is an important but not decisive factor in the fairness of a dismissal.
Consani Engineering (Pty) Ltd v CCMA & others (2004) 25 ILJ 1707 (LC )
The requirement of consistency is not a hard and fast rule. Flexibility is equally important.