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What is double jeopardy - and why does it matter?

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Can the employer discipline an employee twice for the very same incident of misconduct?

 

Under exceptional circumstances a second disciplinary process might be justified.

 

 

This might be - if the employer is able to present evidence that: 

  • Is new and has therefore not been presented at the first disciplinary hearing, and
  • Is relevant to the charges, and
  • is significant enough to merit a new hearing, and therefore
  • the first sanction imposed was grossly unfair under the circumstances. 

 

However, these factors are not always properly interpreted and applied by employers,  who continue to: 

  • Give employees warnings and dismissals at the same time, or
  • Reopen cases that should be left alone, or
  • Set up new disciplinary hearings without good reason after the employee has already been disciplined for the offence, or
  • Open new hearings with newly formulated charges that are merely a different way of wording the same charge in respect of which the employee managed to avoid dismissal.

 

In the case of Rakgolela vs Trade Centre (2005, 3 BALR 353) the employee was dismissed for misappropriation and misuse of a company cell phone.  He lodged an internal appeal in terms of the employers appeal policy. On appeal the dismissal was overturned and replaced with a final warning. The employer then charged the employee again for the same incident of taking the cell phone and added a new charge of telling lies during the original hearing.

After the employee’s original dismissal had been overturned on appeal the police reported that the employee had lied about not having taken the cell phone home. The employer used this report as ammunition to recharge the employee and fire him a second time. However, the fact that the employee had lied had already been established by the appeal chairperson. The CCMA therefore found that there had been no new evidence justifying the second hearing and dismissal.

 The CCMA found that the employee had been the victim of double jeopardy as he had been disciplined twice for the same misconduct. The employer was ordered to pay the employee 12 months’ remuneration in compensation for the unfair dismissal.

 

In Shosholoza Workers Unions of South Africa obo Spiers vs Massbuild (Pty) Ltd T/A Builders Trade Express Warehouse Superstore [2018] 6 BALR 691 CCMA a cashier was dismissed for removing a cold drink from the store at which she worked without paying for it. She was suspended, subjected to about 10 polygraph tests, but found not guilty after a disciplinary hearing. Later she was subjected to another hearing chaired by a manager of another store, and dismissed.

The Commissioner noted after a hearing in the absence of the respondent that both hearings arose from the same incident, and that the charge sheets differed only semantically. Furthermore, the employee’s explanation that she had taken the cold drink to a fellow cashier merely to confirm its price for a customer was convincing, and had been accepted by the presiding officer of the first hearing.

As the employee did not seek reinstatement, she was awarded compensation equal to five months’ salary.

 

Where double jeopardy occurs it is often because the employer needs to get the employee out by hook or by crook. This could be due to a personality clash, to the fact that the employee is considered to be a trouble maker or simply because the employer has genuinely lost trust in the employee.

 

Whatever the reason the employer is not free to act on it before ensuring that the dismissal would be fair. Neither can the employer dismiss the employee for reasons that the employer feels are fair. What is fair or not is determined by: 

  • The legal provisions of the Labour Relations Act (LRA), and 
  • Complex principles of fairness emanating from case law, and 
  • The factual circumstances of each individual case, and 
  • How the CCMA or bargaining council is likely to react to the case.

 

The lay employer will not easily be able to assess his/her case against these four factors. This is because: 

  • The employer is often too emotionally embroiled in the case, and/or
  • He/she might not have the legal knowledge and analytical ability necessary to assess the merits of the case accurately and objectively.

 

Therefore, before risking the very costly double jeopardy pitfall, employers should take a deep breath and get expert advice on what to do.

 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za.

To attend our 24 November 2020 webinar on RETRENCHMENT AND THE COVID ENVIRONMENT please contact Ronni via [email protected] or on 0845217492.

 

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