When it comes to workplace misconduct, employers must be cautious when addressing disciplinary matters. The principle of double jeopardy, rooted in criminal law, dictates that an employee cannot be charged twice for the same misconduct. Employers need to ensure they have all their facts straight, because they won’t get a second chance, right? Well, not exactly.
A recent Labour Court judgment in SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others (JR 1211 / 2018) [2023] delves into the complexities of double jeopardy in labour disputes.
The case involved Mr. M, an accountant for a municipality, who was accused of attempting to access the municipality’s bank account without authorisation. Although he maintained that using colleagues’ passwords was a common practice in his department, he was found guilty and dismissed. An arbitrator later ruled the dismissal too harsh and reinstated him after an extended period of unpaid suspension.
Upon his return, Mr. M was issued a new notice to attend a hearing, this time charged with gross dishonesty for sharing his password and violating the employer’s IT policy. Found guilty once more, he was dismissed again. The second arbitrator upheld the dismissal, prompting Mr. M to bring the matter before the Labour Court, arguing double jeopardy.
The Court examined the concept of double jeopardy in labour matters, concluding that fairness is the ultimate determining factor. A second hearing for the same offense may be permissible if the circumstances justify it, as labour law is guided by fairness alone.
In Mr. M’s case, the second hearing arose from information the municipality had not possessed during the first hearing. It only became aware of the password-sharing practice when Mr. M testified in the initial arbitration hearing. Consequently, the charges in the second hearing were materially different from those in the first, despite stemming from the same events.
The Court found no merit in Mr. M’s review application and characterised his understanding of double jeopardy as opportunistic and incorrect.
This judgment serves as a reminder for employers that in certain cases, they may indeed have the opportunity to take disciplinary action again when new information surfaces or misconduct is found to be more severe than initially thought. However, the approach to addressing misconduct for a second time should be undertaken with care, and it is advisable to consult a labour specialist or attorney for guidance.
In conclusion, while double jeopardy is an important principle to keep in mind, the ultimate goal in labour disputes is fairness. Employers should tread carefully when revisiting disciplinary matters, but this judgment provides some assurance that they are not always limited to a single bite at the cherry.
By George Herbst | Barnard
