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.labourlawvideos.co.za
The legal term for double discipline is ‘double jeopardy’. While, such discipline would normally be found to be unfair, it is possible that it might, in exceptional cases, be justified if the employer is able to prove:
- that new, relevant and significant evidence has belatedly been uncovered that was not presented at the first disciplinary hearing and/or
- that the corrective action handed down by the presiding officer was so disproportionately and ridiculously mild as to render it unjust.
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 SACCAWU vs Checkers Hyper Valencia (Lex Info 9 May 2025. Labour Court case number JR 1505/23) the employee was found guilty of fighting a colleague in public. Based on her claim that she was not the aggressor and had fought in self-defence she was given a final warning. The employer’s HR Manager reviewed this sanction and replaced it with a dismissal.
The union, after losing its double jeopardy case at the CCMA took the matter on review. The Court found that the dismissal had been procedurally unfair because the employer had not given the employee an opportunity to state her case before the increased penalty had been implemented. The employer was required to pay the employee 3 months’ compensation.
The above decisions show that what is fair may not be determined merely by the employer’s opinion. It 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.
The lay employer will not easily be able to assess its case against these three factors because:
- The employer is often too emotionally embroiled in the case
- It 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 them compensation, they should train their managers and HR/IR partners that the law gives employees a right to fairness and that revising an employee’s penalty without giving him/her an opportunity to state his/her case is unfair.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
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This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
