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.
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 troublemaker or simply because the employer has genuinely lost trust in the employee.
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 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 but fairly.
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