double jeopardy if no new evidence is presented
03 September 2008

In cases where an employee is punished twice for the same incident of misconduct or poor performance, the term "double jeopardy" has come to be used. Normally, such a second round of disciplinary action would be found to be unfair.

However, one view is that a second disciplinary process might be justified if the employer is able to present evidence that:

·          Is new and has therefore not been presented at the first disciplinary hearing;
·          Is relevant to the original charges; and
·          Is significant enough to merit a new hearing.

However, even this controversial view is not being properly interpreted.
One finds that employers who continue to:

·          Give employees warnings and institute 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, to find the "new" charges merely a different way of wording same charges which the employee managed to avoid dismissal.

Some case law may serve as a timely warning to employers to proceed with extreme care in these matters.  In the case of Rakgolela vs Trade Centre (2005, 3 BALR 353) the employee was dismissed for misappropriation and misuse of a company cellphone.  He lodged an internal appeal in terms of the employer's appeal policy.
On appeal the dismissal was overturned and replaced with a final warning.

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Ivan Israelstam,  www.labourguide.co.za