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Double Jeopardy A Danger For Employers

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: ivan@labourlawadvice.co.za.
Go to: www.labourlawadvice.co.za

This is the second in a series of articles on Changes and
Dangers in Labour Law.

In the interests of fairness arbitrators and judges sometimes
depart from the basic principles of law and look at the unique circumstances of
the case. Double Jeopardy is just such a principle of law where exceptions may
need to  be made. 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, a
second disciplinary process might be justified if the employer is able to present:

  • new, significant and relevant evidence that
    renders the initial decision unfair to the employer or
  • evidence that the initial penalty was grossly
    irrational in the light of the evidence produced and/or that the presiding
    officer did not apply his mind.

For example, in the case of Rustenburg Base Metal
Refineries (Pty) Ltd vs Solidarity & others (CLL Vol. 19 September 2009
page 15) the Labour Court upheld a decision to 
dismiss an employee for an act of sexual harassment, abusive language
and assault despite the fact that he had already been given a final written
warning for the very same act.                                                                                                                             

Employers are warned not to misinterpret this as giving
them licence 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.

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.  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.
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 employer was ordered
to pay the employee 12 months’ remuneration in compensation for the unfair

In the case of Nemagovhani vs
Multi Projects (CLL Vol. 19 September 2009, page 19) the employee was dismissed
for insubordination after having been given a final warning for the very same
act of insubordination (not a previous incident). The only reason that the
employer was able to give for this double punishment was that “management had
decided that he was going to be fired”. The arbitrator therefore found the
dismissal to be unfair.

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

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

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.

To book for our 7 June seminar in
Johannesburg on CHAIRING DISCIPLINARY HEARINGS please contact Ronni via ronni@labourlawadvice.co.za or

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