A question that is repeatedly asked is whether an employer can discipline an employee a second time for the very same incident of misconduct. Common law suggests that this might be justified if the employer is able to prove that:

• there is new and relevant evidence or
• the outcome of the first hearing was grossly wrong.

Some case law may serve as a timely warning to employers to proceed with extreme care in these matters.

In the recent case of Rakgolela vs Trade Centre (2005, 3 BALR 353) the employee was dismissed for taking a company cell phone.  On appeal the dismissal was overturned and replaced with a final warning. The employer again charged the employee for taking the cell phone using a new police report as ammunition for the repeat charge.

The CCMA found that 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 the employee 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. 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
• He/she might not have the legal knowledge and analytical ability necessary to assess the merits of the case accurately and objectively.

Therefore, before risking the very costly double jeopardy pitfall, employers should take a deep breath and get expert advice on the merits of the case and how to respond.

To book for the 11 March Johannesburg seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.

Submitted by Labour Law Management Consulting