Does double jeopardy apply to labour cases?

Lavery Modise

Lavery Modise

It is the prerogative of an employer to discipline its employees. An employee who has been charged with misconduct or poor performance is entitled to be given the opportunity to be heard before he can be sanctioned. Arising from the convening of a disciplinary enquiry, the employer may impose a sanction it considers appropriate, provided the sanction is fair.

The criminal principle of double jeopardy is also applicable to labour law. Double jeopardy means that no one can be brought to trial more than once on the same facts after he had previously not been found guilty. The civil law equivalent of this principle is the "once and for all principle". This principle prohibits a party to a dispute in which a court has given judgment to threaten another party with further litigation on the same issue.

In the labour law context, double jeopardy may occur where the employer subjects the employee to a second disciplinary enquiry for the same offence, after an employee had been found not guilty at the first disciplinary inquiry or a less severe sanction than dismissal was imposed.

If applied in the strict sense, as in criminal law, the employee could raise double jeopardy as a defence and the employer would then not be able to proceed with the second inquiry based on charges in respect of which an employee was not found guilty.

In order to succeed with the defence of double jeopardy, the employee must allege that the decision to acquit him or to impose a less severe sanction was made at a previously properly constituted disciplinary enquiry and that the second charge was based on the same facts of his previous disciplinary inquiry in respect of which he was not found guilty.

It often happens that an employee who commits an offence is issued with a warning for a transgression by his line manager. However, should it happen that the same offence is brought to the attention of a senior manager, he may think it warrants a dismissal.

In Brandford vs Metrorail Services & Others (2003) an employee was given a warning by his line manager for forging a manager's signature on petty cash claims.

On learning about the offence and the sanction, the regional manager ordered the auditors to investigate the issue. On the strength of the auditor's report the regional manager ordered a further disciplinary inquiry that resulted in Brandford's dismissal.

The Labour Court held that the employer had not infringed the double jeopardy rule. The court held that Brandford had not been subjected to two disciplinary enquiries, because at the time when the employee was issued with a warning, he was not formally charged by his line manager and therefore did not appear before a disciplinary enquiry.

In BMW (SA) vs Van der Walt (2000) the Labour Appeal Court held that the question whether or not to institute a second disciplinary inquiry against an employee would depend on whether it is, in all circumstances, fair to do so. The appeal court said it would probably not be fair to hold more than one disciplinary inquiry, except in exceptional circumstances.

In cases where an employee proves that a properly constituted disciplinary inquiry was previously held, and that a later charge brought against the employee was based on the same facts, the employee should in most cases be successful by raising the defence that he had previously been charged and found not guilty before a properly constituted disciplinary hearing.

l Lavery Modise is a director, and Lebogang Kutumela an associate at Routledge Modise in association with Eversheds