Whatever reason, double jeopardy is unlawful

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 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.