Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
Double Jeopardy occurs where an employee is punished twice for the same incident of misconduct. Normally, such discipline would be found to be unfair.
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.
Also, double jeopardy might be justified if the employer can prove that the initial penalty was so lenient as to be unjust.
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
- Recharge employees with infractions that are merely worded differently to the same charge in respect of which the employee previously managed to avoid dismissal.
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. The arbitrator found this to be double jeopardy and therefore ordered the employer to reinstate the employee with full back pay.
This shows that the employer is not free to commit double jeopardy 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 to reinstate a fired employee or to pay huge amounts in compensation they should turn for advice to a reputable labour law expert before taking any action against the employee.