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Put the employee on trial twice for the same offense – is it permissible? Firstly, why do you want to put him on trial a second time, when the matter has already been heard, a verdict delivered, and a sanction imposed? In all instances, the decision as to whether a second inquiry may be opened for the same offence against an employee, would depend on whether, considering all the facts, it is fair to do so.
One reason may be:
In this event, a second hearing would probably prove fair to both employee and employer. However, this would have to be very soon after the first hearing. If for example, the procedural defects were only discovered six months after the first hearing, very careful thought would have to be given to the matter of reversing the entire process and starting again.
You would have to carefully consider any prejudice to the employee and to your own situation before proceeding, and would also have to decide whether there would be any benefit to the employee if a second hearing was held.
Another reason for wanting a second hearing may be:
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Management is dissatisfied (usually on some or other arbitrary grounds) with the sanction imposed in the first hearing and desires to impose a more harsh penalty. For example, the Chairperson of the hearing may have imposed a final written warning and management desire that the employee should be dismissed.
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Perhaps the Chairperson arrived at a verdict of not guilty, and upper management feel that the employee must be found guilty and a suitable sanction imposed.
It is not good practice for management to 'second-guess' the Chairperson of a disciplinary hearing. If management wish to do this, then they themselves should have chosen the Chairperson in the first instance.
In other words, as is sadly often the case, the Chairperson is instructed by management before the hearing "whatever you do, make sure he is dismissed." Management were not present at the disciplinary hearing, and under normal circumstances the verdict of the Chairperson is final as far as the procedure is concerned. Management therefore should not try to obtain a different outcome purely on arbitrary grounds or simply because they think "he deserves to be fired."
Management can only become involved if they themselves have sat in on the disciplinary hearing, have heard and considered all the evidence, and made a finding in terms of a fair procedure. Management must then decide on an appropriate sanction in terms of a fair reason.
In other words, the bottom line is that management must keep their noses out of it and not interfere in a process in which they played no part whatsoever except to voice a baseless disagreement with the Chairperson's verdict and sanction. It must be specifically pointed out that if the first hearing was properly constituted and procedurally fair, the employer would be very hard-pressed to justify setting aside the first hearing and subjecting the employee to a new inquiry.
This would apply particularly if the fair procedure followed includes the fact that the employer followed his own procedure in terms of his own Disciplinary Code. One disadvantage of not holding a second inquiry is perhaps that new evidence that has been acquired after the first hearing, would not be able to be admitted, and as a result a miscarriage of justice could arise.
If therefore new evidence does arise, it must be carefully considered. If the admission of the evidence would prove of benefit to the employee, then it follows that it would be fair to hold a second hearing. The new evidence could also be detrimental to the employee but beneficial to the employer, and since the concept of fairness must apply to both sides in order to be classified as "fair", it would also be justifiable under those circumstances to hold a second hearing.
For example at the first hearing the evidence presented may not have justified a sanction of dismissal, but the new evidence could easily show that a sanction of dismissal would be more appropriate under the new circumstances. It is never good idea to rely on the possibility of a second hearing as an available option in preparing for the first hearing.
It is far better that the case be fully investigated in the first instance, and that the entire process be conducted in terms of a fair procedure. Employers should always consult their labour law consultant or lawyer in such matters.
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