Disciplining for the same misconduct

Ivan Israelstam

A question repeatedly asked is whether an employer can discipline an employee a second time for the same incident of misconduct. Legal opinion is divided on this question. However, 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;
• is relevant to the charges; and
• is significant enough to merit a new hearing.

However, even this controversial view is not properly interpreted by employers who continue to give employees warnings and dismissals at the same time; who re-open cases that should be left alone; who set up new disciplinary hearings without good reason after the employee has already been disciplined for the offence. Or who 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.

Case law may serve as a timely warning to employers to proceed with extreme care in these matters. In the case of Constant Pretorius vs the SA Bureau of Standards (SABS) it was reported that the SABS 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.

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. In Rakgolela vs Trade Centre, the employee was dismissed for misappropriation and misuse of a company cellphone. He lodged an internal appeal in terms of the employer's appeal policy.

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.

After the original dismissal had been overturned, the police reported that the employee had lied about not having taken the phone home. The employer used this as ammunition to recharge the employee and fire him a second time.  However, the fact that the employee had lied had been established by the appeal chairperson. The CCMA found there had been no new evidence justifying the second hearing and dismissal.

The CCMA found the employee had been the victim of double jeopardy as he had been disciplined twice for the same misconduct. The employer was ordered to pay 12 months' remuneration in compensation for the unfair dismissal.

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. 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; 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 or he/she might not have the legal knowledge and analytical ability necessary to assess the merits of the case accurately and objectively.

• Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011-888-7944 or via email:  This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
• Our appreciation to Ivan and the Star newspaper for permission to publish this article.