Double Jeopardy occurs where an employee is punished twice for the same incident of misconduct or poor performance. Normally, such discipline would be found to be unfair. However, one view is that a second disciplinary process might be justified 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.
However, even this controversial view is not properly interpreted by employers who continue to:
- Give employees warnings and dismissals at the same time
- Reopen cases that should be left alone
- Set up new disciplinary hearings without good reason after the employee has already been disciplined for the offence
- 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.
Some case law may serve as a timely warning to employers to proceed with extreme care in these matters.
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 the case of HOSPERSA obo Lokoeng vs Provincial Department of Health – Limpopo (2006, 5 BALR 474) the employee received a string of warnings for absenteeism. He was later dismissed for these same incidents of absenteeism. That is, no evidence was brought to show that, after having received his last warning, he was absent again. The arbitrator found this to be double jeopardy rendering the dismissal unfair. The employer was therefore ordered to reinstate the employee with full back pay.
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
- He/she might not have the legal knowledge and analytical ability necessary to assess the merits of the case accurately and objectively.
If employers want to avoid having an undesirable employee reinstated or having to pay huge amounts in compensation they should turn for advice to a reputable labour law expert who will be able to provide objective and legally sound advice on how to handle the problem effectively but fairly.
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