Schedule 8 of the Labour Relations Act, 66 of 1995 : Code of Good Conduct: Dismissal, sets out the guidelines for a dismissal to be fair. One of the factors to take into consideration is whether the rule contravened has been consistently applied.

Buqa, a former employee of the Department of Health, was charged with stealing a patient’s bag. At the disciplinary hearing and at the arbitration, Buqa admitted that he had  stolen the bag, with the result that the only issue for consideration was an appropriate sanction.

At arbitration, the crux of Buqa’s defense argument was that the Department had acted inconsistently by dismissing him in relation to other employees who were found guilty of similar misconduct. The arbitrator did not agree with his argument and dismissed him.

Buqa applied to the Labour Court to review and set aside the arbitration award on the basis that the arbitrator inter alia had disregarded the facts that the Department had previously condoned various incidents of theft; had been lenient on employees who stole at work; he had returned the bag; and he was remorseful.

The Labour Court held that a material factor or consideration in applying the consistency principle is whether the underlying misconduct amounts to a serious criminal offence and accordingly held that inconsistency cannot be relied upon when the underlying misconduct involves serious criminal misconduct. The review application was therefore dismissed highlighting that the consistency principle does not apply if the misconduct involves serious criminal misconduct such as theft.

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