BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za
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, 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 and
- Is relevant to the charges and
- is significant enough to merit a new hearing.
However, even this controversial view is not properly interpreted by employers who continue 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.
Some case law may serve as a timely warning to employers to proceed with extreme care in these matters.
In the case of HOSPERSA obo Lokoeng vs Provincial Department of Health – Limpopo (2006, 5 BALR 474) the employee received a string of warnings for absenteeism. He was later dismissed for these same incidents of absenteeism. That is, no evidence was brought to show that, after having received his last warning, he was absent again. The arbitrator found this to be double jeopardy rendering the dismissal unfair. The employer was therefore ordered to reinstate the employee with full back pay.
In Mahlakoane v South African Revenue Service [2018] 4 BLLR 337 (LAC) the employee had, while previously unemployed, drawn social assistance grants. After she was employed by the respondent she illegally continued to accept payment of the grants. Due to this SARS charged her with fraud of which she was acquitted at her disciplinary hearing.
However, at that disciplinary hearing she had produced in her defence two fraudulently altered letters from the SA Social Security Agency, informing her that the grants had been cancelled. She was charged again with fraud, this time for the falsified letters, was found guilty and dismissed. The CCMA found the dismissal unfair on the basis that the employee had been subjected to a second hearing on charges relating to the same offence and so reinstated the appellant. On review, the Labour Court overturned the CCMA’s decision.
The Labour Appeal Court held that the charges in the first hearing did not relate to the authenticity of the letters the appellant had presented. The charges in the second hearing arose from the falsification of the dates on the letters. The Commissioner had, accordingly, erred by finding that double jeopardy applied. The facts proved that the employee had in fact falsified the letters. As there had been no double jeopardy and as the employee had been guilty of a very serious act of dishonesty the dismissal was fair. The appeal was dismissed with costs.
Where double jeopardy does occur 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 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.
In the SARS case above even the CCMA commissioner had been unable to see that there had been no double jeopardy. This suggests that, if lay 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 18 October course on COMBATTING WORKPLACE ABSENTEEISM please contact Ronni on ronni@labourlawadvice.co.za or 084 521 7492.