What if an employer treats the same act of misconduct by two employees differently?

In this episode of our “What if” series, we unpack a Labour Court judgment that every employer and HR professional needs to know: What if an employer treats the same act of misconduct by two employees differently. What are the overarching legal considerations and implications? In the matter of The City of Cape Town v SAMWU obo Mlungwana, an administrative clerk was dismissed for overstating his overtime by just 14 minutes under the City’s strict “zero tolerance” dishonesty policy. Yet his direct supervisor committed the identical offence on the same day (overstating by 9 minutes) and was not even charged. The Labour Court found the dismissal substantively unfair due to contemporaneous inconsistency, ordering reinstatement. The judgment reinforces the constitutional principles of equality and fair labour practices: like cases must be treated alike unless there is an objective justification for differentiation. Learn the three critical takeaways on procedural consistency, the dangers of selective “zero tolerance” enforcement, and why minor timing differences will not justify disparate treatment. Brought to you by Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice), WP Moolman (Partner (Equity), LLB) and Ulrich Stander (Director, BA LLB LLM IRDP) Case link: https://www.saflii.org/za/cases/ZALCC...