Consistency – Employers and Employees
The requirement that employees must be aware of the rules of the workplace gives rise to the further principle that the employers must apply their rules consistently. Generally speaking, it is unfair in itself to treat people who have committed similar misconduct differently. However, it is also unfair because inconsistent application of rules creates confusion and possible doubt about whether a rule in fact exists.
The courts have distinguished in this regard between historical inconsistency and contemporaneous inconsistency. Historical inconsistency occurs when an employer has in the past, as a matter of practice, not dismissed employees or imposed a specific sanction for contravention of a specific disciplinary rule. In such cases, unfairness flows from the employee’s state of mind: the employees concerned were unaware that they would be dismissed for the offence in question. Contemporaneous inconsistency occurs when two or more employees engage in the same or similar conduct at roughly the same time, but only one or some of them are disciplined, or where different penalties are imposed.