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Double jeopardy or double punishment applies in instances where a particular sanction has been enforced, and then subsequently a further or harsher sanction is enforced for that same act of misconduct. 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.
• Evidence that the initial penalty was grossly irrational in light of the evidence produced and/or that the presiding officer did not apply his mind.

In a recent labour court case of Okay SA Municipal Workers Union on Behalf of Malatsi v SA Local Government Bargaining Council & Others (2023) 44 ILJ 1317 (LC), the employee was charged with misconduct after it was found that his computer was used in an attempt to access the municipality’s bank account. He was charged in that he had failed to conduct himself with honesty and integrity in that he attempted to access the municipality’s bank account on 11 occasions on eight different dates between 31 January and 23 February 2012, and the alternative charge was fraud. The employee was found guilty of misconduct and dismissed. The employee subsequently referred an unfair dismissal dispute to the First Respondent (SALGBC). The evidence was that it was a normal practice to share computers and passwords, which were written on the calendars on the computer desks. It was found that his dismissal was unfair because it was not possible to conclude that it was he who had attempted to access the municipality’s bank account as he was not the only employee who had access to his computer.

After his reinstatement and on 3 November 2016, the company issued a second notice to attend a disciplinary hearing to the employee. Two charges of misconduct were levelled against him – the first charge was gross dishonesty in that he acted dishonestly with the intention to deceive the municipality by sharing his own computer-created password with other employees during the period February 2012, whereafter his computer was used for fraudulent activities. The second charge was for failure to comply with the Companies IT policy by sharing his computer’s password with other employees, which resulted in his computer being used for fraudulent activities. The employee was found guilty and dismissed and another unfair dismissal dispute was referred to the SALGBC. 

The Labour Court restated the test on review and applied it to the issues of whether the dismissal had been substantively fair and whether charging the employee twice constituted double jeopardy. The court noted that this was a criminal law construct and that the courts had not adopted the defence in an employment context without qualification or reservation. The ultimate determining factor was fairness, and a second hearing will be permissible if the circumstances justify it. The court considered the jurisprudence of the Labour Appeal Court on the issue and concluded that an employer could institute disciplinary action a second time for conduct that arose from the same set of facts, and that fairness would determine whether the employer was justified in instituting disciplinary action a second time. The court further found that each case had to be decided on its own merits, by a consideration of all the surrounding circumstances, in light of what was fair to both parties.

Applying this test to the facts, the court found that this had not been a case of double jeopardy because the charges in the second hearing had emanated from information that the municipality had not had at the time of the first enquiry and of which it had only become aware as a result of evidence at the first arbitration hearing. Consequently, the misconduct charges in the first and second disciplinary hearings had been distinct.

What is fair or not is determined by:

• The legal provisions of the Labour Relations Act (LRA).
• Complex principles of fairness emanating from case law.
• The factual circumstances of each individual case.
• 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, and he/she might not have the legal knowledge and analytical ability necessary to assess the merits of the case accurately and objectively. Before risking the very costly double jeopardy pitfall, employers are advised to get expert advice on what to do.

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