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
It is well established that employees must not be punished twice for the same offence unless exceptional circumstances exist. But what happens if an arbitrator has imposed a punishment and the employer feels it is too lenient? In the peculiar case of SAMWU vs Gert Sibande District Municipality September 2025 (Labour Appeal Court case number JA 64/23) the employer fired the employee for fraud because he had allegedly used his computer to access the employer’s cash portal.
At the bargaining council the arbitrator found that the employee had not committed fraud but had rather been negligent in enabling others to misuse his computer by displaying his computer password on his desk. The arbitrator ordered reinstatement and replaced the sanction of dismissal with four months’ suspension without pay.
The employer accordingly reinstated the employee, but fired him again; this time for sharing his password with his colleagues. At the bargaining council the second arbitrator upheld this dismissal; and the Labour Court concurred with this decision.
However, the Labour Appeal Court found that the employer had failed to oppose the first arbitrator’s penalty award of 4 months’ suspension imposed on the employee for sharing his password. As the second dismissal imposed by the employer was for the very same offence it constituted double jeopardy and was unfair. Had the employer first successfully opposed and nullified the arbitrator’s milder penalty decision, it would then have been free to impose its own sanction.
The Court ordered the employer to reinstate the employee with nine years’ backpay.
This outcome reminds employers that double jeopardy will not be tolerated by the courts and that unopposed arbitration awards have to be respected. As both legal principles have complications it is crucial that all those responsible for workplace discipline and for litigation need to be trained in the requirements of workplace law.
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 necessary 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.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
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
