An overview of circumstances permitting fair deviation from the principle of double jeopardy
Double jeopardy is the generally accepted principle adopted from criminal law and applied in employment law, that dictates that an employee cannot be disciplined twice for an offence which he / she has been found guilty or acquitted of.
The standard to which employers are held in convening disciplinary enquiries is that of fairness, which is to be viewed from the perspectives of both employers and employees.
Whilst adherence to the principle of double jeopardy is desirable, there are certain exceptional circumstances that justify a departure:
- When new evidence is discovered after the first enquiry is held
Evidence discovered after the first hearing and omitted due to no fault of the employer would justify a second hearing being held, as was concluded in the case of Van Tonder v Estee Lauder Companies (Pty) Ltd [2018] 4 BALR 448 (CCMA). Video footage discovered, after the initial hearing, casted the originally disclosed facts in an alternate light. A second hearing was deemed justified as both parties had a right to get closer to the truth – the employer by requesting the employee to account for her actions and the employee to defend her actions, in light of the new evidence.
In the case of BMW (SA) (Pty) Ltd v Van der Walt [2000] 2 BLLR 121 (LAC), a second hearing was held to be fair due to new evidence being discovered after an employee was issued with a warning for failure to follow procedure in removal of ‘scrap’. It was later discovered that the conduct of the employee was not an omission but rather an attempt to defraud the company by selling valuable equipment that had erroneously been marked as scrap, for personal benefit. The evidence discovered after the initial hearing altered the nature and seriousness of the offence which rendered holding a second hearing justifiable.
2. The procedure followed at the first disciplinary hearing was fatally flawed
Procedure may be flawed:
- When an unauthorized person determines a sanction, for example, a supervisor instead of a manager who maintains the discretion to discipline.
- There is a collusion between the chairperson and employee.
- The decision of the chairperson was taken in haste or bad faith.
- The incorrect disciplinary procedure has been followed.
3. The outcome of the first hearing was manifestly unfair to the employer
Employers have the right to discipline employees however the principle of double jeopardy exists to ensure that employers do not arbitrarily subject employees to more than one hearing for a single act. Employers would not be entitled to rely on exceptional circumstances to justify a second hearing, should they neglect to properly collate evidence prior to instituting disciplinary action. Employers are therefore cautioned to undertake diligent investigations prior to instituting disciplinary action and only consider convening a second disciplinary hearing should one of the said exceptional circumstances exist.
ABOUT THE AUTHOR
Candice Govender is an admitted attorney of the High Court of South Africa since 2016. She obtained her LLB degree in 2014 and her LLM degree in 2015 from the University of KwaZulu-Natal. Candice joined SEESA in 2018 after having practiced as a civil litigation associate attorney.