Double jeopardy occurs if 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, is relevant to the charges and is significant enough to merit a new hearing.

Even this controversial view is not properly interpreted by employers who continue to give employees warnings and dismissals simultaneously and reopen cases that should be left alone. It is folly to set up new disciplinary hearings without good reason after the employee has already been disciplined for the offence or to open new hearings with newly formulated charges that are merely a different way of wording the same charge regarding which the employee has already managed to avoid dismissal during a previous process.

Some case law may serve as a timely warning to employers to proceed with extreme care in these matters.

In the case of Magwaca & others vs Eldorado Chickens (2011, 8 BALR 843) the employees received a string of warnings for failing to report thefts. They were later dismissed for these same incidents of misconduct. That is, no evidence was brought to show that, after having received their previous warning, they had repeated the same misconduct. The arbitrator found this to be double jeopardy rendering the dismissal unfair and ordered the employer to compensate the employees.

In Metropolitan Health Risk Management v Majatladi and others [2015] 3 BLLR 276 (LAC) the respondent employee agreed to a temporary transfer to head another unit after its head resigned. When the transfer agreement expired and the employee refused to continue acting in the post, the management charged her with “gross insubordination” and “conduct unbecoming”. She was found not guilty on the first charge and guilty on the second, for which she received a final written warning.

Constructively dismissed

The post was filled while the employee was on sick leave, and on her return she was charged again with “gross insubordination” for not reporting for duty in that same acting post.

The employee resigned the day before the second disciplinary hearing was due to convene. The labour court held that the second disciplinary hearing was “the proverbial straw that broke the camel’s back”, found that the employee had been constructively dismissed and awarded her compensation.

On appeal the LAC held that it is profoundly unfair to charge an employee twice for the same offence. Furthermore, the evidence indicated that the second “instruction” was part of an orchestrated plan to get rid of the employee after the management’s first attempt to persuade her to continue in the acting position had failed. The management was to blame for making the employee’s working life intolerable and the employee’s resignation therefore amounted to a constructive dismissal. The appeal was dismissed with costs.

When 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 justified defiance on the employee’s part, 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.

Emotionally embroiled

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. Also crucial are the factual circumstances of each individual case and how the CCMA or bargaining council is likely to react to the case.

Lay employers will not easily be able to assess their case against these four factors. This is because the employer is often too emotionally embroiled in the case and 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 and fairly.

 • Israelstam is CEO of Labour Law Management Consulting.

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