Whatever reason, double jeopardy is unlawful
By Ivan Israelstam
In the interests of fairness, arbitrators
and judges sometimes depart from the basic principles of law and look at the
unique circumstances of the case.
Double Jeopardy is just such a principle of law where exceptions may need to
be made. 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 v
Solidarity and 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; and
-
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.
In the case of Rakgolela v
Trade Centre (2005, 3 BALR 353) the employee was dismissed for misappropriation
and misuse of a company cellphone.
On appeal the dismissal was overturned and replaced with a final warning.
The employer then charged the employee again for the same incident of taking the
cellphone and added a new charge of telling lies during the original hearing.
However, the fact that the employee had lied had already been established by the
appeal chairperson. The CCMA therefore found that there had been no new evidence
justifying the second hearing and dismissal.
The employer was ordered to pay the employee 12 months' remuneration in
compensation for the unfair dismissal.
In the case of Nemagovhani v Multi Projects (CLL Vol. 19 September 2009, page
19) the employee was dismissed for insubordination after having been given a
final warning for the very same act of insubordination (not a previous
incident).
The only reason that the employer was able to give for this double punishment
was that "management had decided that he was going to be fired".
The arbitrator therefore found the dismissal to be unfair.
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; and
-
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.
-
Ivan Israelstam is chief executive of Labour Law Management Consulting. He
can be contacted on 011 888-7944 or
labourlaw@absamail.co.za
-
Our appreciation to Ivan
and The Star newspaper for permission to publish this article.
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