|
The question of double jeopardy, like the proverbial bad penny, keeps cropping up. It is probably a generally misunderstood term. Questions like "the employer imposed a sanction of three days unpaid leave for the unauthorised absence, plus a written warning. Is that not a double penalty or double jeopardy?" it must be stated at the outset that, in general, double Jeopardy has nothing to do with the sanction imposed. But I say "generally" – because in certain circumstances, it might be related to the sanction.
In generally accepted terms, double jeopardy means that an employee is tried twice for the same offence - two disciplinary hearings are held for the same offence - that is double jeopardy. For example, a presiding officer hands down a sanction of a final written warning. The employer is not satisfied - he cancels the disciplinary hearing and the sanction, and convenes another disciplinary hearing for the same offence - probably disguised in different wording - because he wants the employee to be dismissed.
Double jeopardy may also occur where an employer reviews the sanction imposed by the presiding officer, and unilaterally changes it to a more harsh sanction - that might also constitute a double jeopardy. In Solidarity obo Van Rensburg / Rustenburg Base Metal Refineries (Pty) Ltd [2007] 9 BALR 874 (P), on 13th July 2007, with the Honourable CE Watt-Pringle SC, Arbitrator, presiding, this question of double jeopardy was addressed.
Briefly, the applicant employee had been charged with sexual harassment, using abusive language, and assault. The presiding officer at the disciplinary hearing found him guilty of using abusive language, and also guilty of the assault, but not guilty of sexual harassment.
The presiding officer imposed a final written warning, valid for six months. A month later, the employee was informed that, having considered the verdict and sanction, the company had decided that the sanction of a final written warning was unjustifiable and inappropriate, and that the company had accordingly decided to appoint a new chairperson to review the matter.
The employee declined the invitation to make written representations to the new chairperson, but later made oral submissions. The new chairperson set aside the original sanction, but confirmed the verdict in respect of the charge of assault, and substituted a sanction of dismissal for the final written warning.
The employee submitted that this amounted to double jeopardy, having been tried twice for the same offence. At arbitration, the employee submitted that the company was not entitled to do this. At the CCMA arbitration, agreement was reached by the parties to refer the matter to private arbitration.
The arbitrator at the private arbitration was to decide "whether the respondent (employer) could, in all fairness, review, set aside and impose a more severe sanction, to wit – dismissal - then the sanction imposed by the chairperson or presiding officer appointed by the respondent to hear the disciplinary enquiry, when the respondent's disciplinary code and procedures do not specifically provide for such a review - although it also does not expressly prohibit such a procedure.
The parties agreed that if the answer to this question was in the negative, the merits of the dismissal would be placed before another arbitrator. On the question of whether the company was entitled in principal to review a decision it considered unjustifiable, the arbitrator accepted that discipline in the workplace involves a balance between the interests of the employer and the employee. However, this does not mean that an employer is entitled to override his disciplinary procedures merely because he considers a sanction too lenient.
It was also accepted that that employers are entitled to determine their own disciplinary procedures, and such procedures might include, or make provision for, an appeal by the employer against findings or sanctions imposed by the chairperson or presiding officer. In this particular instance, the employers disciplinary procedure did not make such a provision – but also did not prohibit it. It is an interesting point for employers to note that they can make such a provision in their disciplinary procedure - a provision whereby the employer would be entitled to review the decision made by the chairperson of the disciplinary hearing.
There are instances where the chairperson of a disciplinary hearing, having not been properly trained, or lacking in knowledge of correct procedure and labour law, or perhaps he is unfamiliar with the employers disciplinary code, or perhaps is plainly and simply incompetent, may return a ridiculous finding regarding a sanction, which, in the words of the case mentioned may be "manifestly and justifiable and shockingly inappropriate." in such cases, the employer is faced with a big problem - he is between the devil and the deep blue sea.
He appointed the chairperson - his disciplinary procedure makes no provision for a review of the chairperson's finding - and the employer is therefore, by and large, stuck with it.
The judgement in the case we are considering went on to say that the right to review the sanction imposed by a presiding officer appointed in terms of a disciplinary code could arise in one of two situations.
[a] where the facts available to the employer at the time of the disciplinary hearing did not adequately illustrate the gravity of the employee's conduct (in other words, new evidence has been revealed or found) and
[b] where the presiding officer's decision was so stupid, or unjustifiable in the circumstances, or ridiculous, given the facts that he was able to consider, as to warrant the inferance that he failed to apply his mind, or where the disciplinary code has been flouted.
The arbitrator noted that it was not clear whether an employer is entitled, unilaterally, to review its own disciplinary actions in a manner that is not provided for in its own disciplinary code. The arbitrator decided that the employer was entitled to do so, because disciplinary codes constitute only guidelines, and employers are permitted to depart from their disciplinary code provided that it does not prejudice the employee, and that it is the presiding officer's duty to apply the disciplinary code and the standards of conduct set by the employer.
The arbitrator also noted that even in criminal law, a re-hearing is permitted if some or other material irregularity is revealed - what the Americans term "a mis-trial," We will continue with this interesting matter next week.
For more information, contact a
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
|
