A question that is repeatedly asked is whether an employer can discipline an employee a second time for the very same incident of misconduct. 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, employers continue to break the law and:
- Give employees warnings and dismissals for the same offence incident
- Reopen cases that should be left alone
- Open new hearings with newly formulated charges that are merely a different way of wording the same charge.
In the case of Constant Pretorius vs the SA Bureau of Standards (SABS) (The Star, 29 October 2003) the SABS reportedly dismissed Pretorius. for the illegal sale of crash test bodies. But it appears from the report that he had already been given a 12-month final written warning for this very offence in August 2002.
It should be understood that the dismissal may well have been legally acceptable had Pretorius received a final warning for the illegal sale and thereafter committed another similar offence within the 12-month period during which the warning was valid. Then, had he been found guilty at a new disciplinary hearing, a dismissal for the second offence could have been within the bounds of the law.
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 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.
Therefore, before risking the very costly double jeopardy pitfall, employers should take a deep breath and get expert advice on what to do.
To attend our 12 May 2017 seminar in Johannesburg on MANAGING WORKPLACE CONFLICT please contact Labour Law Management Consulting Ronni at firstname.lastname@example.org or on 0845217492 or (011) 782-3066.