Double jeopardy: Dealing with disciplinary action in the workplace

BY WIKUS NEL, KEY ACCOUNT MANAGER AT LABOURNET - MAY 30, 2016

Double jeopardy is a procedural defence that forbids an employee from being tried twice for the same offence on the same set of facts. It usually arises in cases where the employer dislikes the employee and wants to get rid of him by any means necessary.

This could be for numerous reasons, either the employee has broken the trust of the employer or he may have developed a bad attitude at the workplace which is affecting the moral of the staff. Or it could simply be because of a personality clash.

In general, a person cannot be convicted twice for the same offence based on the same conduct where a particular sanction has been enforced, and then subsequently a further or harsher sanction is enforced for that same act of misconduct. Normally such a second round of disciplinary action will be found as unfair.

For example, a presiding officer hands down a sanction of a final written warning. The employer is not satisfied and convenes another disciplinary hearing for the same offence - probably disguised in different wording - because he wants the employee to be dismissed.  Such a second disciplinary hearing would then be found to be unfair.

In HOSPERSA obo Lokoeng vs Provincial Department of Health - Limpopo (2006, 5 BALR 474), the applicant was dismissed for being absent without leave. The applicant stated that his dismissal was unfair because he had already been punished for the offence in question. 

The question to be decided by the commissioner was whether the respondent had punished the applicant twice for the same offence. It was ruled that the employer failed to present any evidence to show that, after having received his last warning, he was absent again. The employer was ordered to re-instate the employee with full back-pay.

Double jeopardy may also occur where an employer reviews the sanction imposed by the presiding officer, and unilaterally changes it to a harsher sanction - that might also constitute double jeopardy.

A second disciplinary process, however, may be justified as fair if employer can present the following evidence:

1)    New evidence that has not been presented at the first disciplinary hearing;

2)    Evidence that is relevant to the original charges; and

3)    Evidence that is significant enough to merit a new hearing.

Employers should refrain from acting on feelings and dismissing employees for reasons that they deem fair. What is fair is usually determined by the following circumstances:

1)    The factual circumstances of each case;

2)    The guidelines and rules determined by the LRA;

3)    What the CCMA or Bargaining Council deems fair; and

4)    The principles of fairness found in case law.