The Parity Principle: “I’ve been dismissed but my colleague who has done the same only got a warning. Is that fair?”

03 March 2023 ,  Bridgeton Petoors 1283
An ever-increasing trend for employees in labour disputes – particularly those of unfair dismissals – is the application of the parity principle. Essentially, the principle dictates that two or more employees guilty of similar misconduct should be penalised in similar ways. The issue, however, is determining whether this principle can be applied as a blanket defence for employees’ misconduct in the workplace. This paper will briefly address the issue as aforesaid. 

Applied practically, the principle of parity means that employers should be consistent in applying or allotting discipline for the same or similar misconduct done by employees. However, in cases where employers are accused of showing inconsistency in past punishments, i.e. breaching the parity principle, such employers would generally plead that there were special circumstances involved, which called for harsher or more lenient disciplinary action. Such circumstances may include the employer’s degree of culpability, the personal circumstances of the employee, and whether the employee showed a pattern of misconduct, which exempted them from leniency. In short, the employer, in applying discipline to two or more employees guilty of the same or similar misconduct, should always do so by assessing the overall factors, and in the spirit of fairness and equality.

This sentiment is supported by a flood of relevant and applicable case law, ranging from as far back as pre-1994 to 2022. This is made evident from the learned judge in National Union of Metalworkers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd, in which he stated that,
“Equity requires that the courts should have regard to the so-called "parity principle". This has been described as a basic tenet of fairness, which requires that like cases should be treated alike.”

And 20 years later, the same statement was supported by the Labour Appeal Court (LAC) in Absa Bank Limited v Naidu and Others, in which the court briefly opined 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 administration of justice.”
While the principle of parity may be one of the employee’s greatest defences, what is equally true is that fairness and equality dictate that they should be applied cautiously. The learned judge in ABSA, and further entrenched by the decision in Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and Others (hereafter Nyathikazi), held, and rightly so in my opinion, that the parity principle should not just be applied willy-nilly without any measure of caution, but that an employer should, at all times, apply his mind in deciding the appropriate sanction. Nyathikazi held further that it may be unjustified to invoke the parity principle, where an employee has committed a serious offence against the employer and the only defence raised is that in a previous case, a wrong decision had been made and so that the employee’s misconduct in the subsequent case can be overlooked. This clearly emphasises the principle would not apply in every situation.

Conclusion
The principle of parity is one of the basic tenets of employment law, and employers should, at all reasonable times when issuing disciplinary action, make sure that they are doing so in the spirit of fairness and equality. However, if one is faced with a large number of offending employees, the best an employer can hope to achieve is reasonable consistency. Additionally, where there was a valid basis to distinguish one case from another in circumstances where employees have been involved in the same misconduct, this did not amount to unfair conduct (see Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC). Employees, on the other hand, should remember that their degree of culpability or circumstances surrounding the matter, may either be their rope to save them from dismissal or be the rope by which they hang themselves and that the excuse of “But you did nothing when he did the same”, will not always guarantee victory.

WRITTEN BY BRIDGETON PETOORS

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Related Expertise: Labour and Employment
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