Double Jeopardy occurs where an employee is punished twice for the same incident of misconduct or poor performance. On many occasions the employer will use this tactic to target employees and have them dismissed.
In circumstances such as this, the dismissal would be found to be unfair. In very limited circumstances a second disciplinary for the same misconduct can be justified:
It can be said with certainty that the above exceptions occur in very rare occasions and are specific to certain situations. In the event that an employer charges the employees and calls him/her to a disciplinary enquiry, it means that the conduct complained of is serious enough to warrant a hearing. The employer should investigate before a charge is written up and in exceptional circumstances suspend the employee pending an investigation with full pay. The law provides for processes that can be followed by the employer to avoid prejudicing the employee and avoiding double Jeopardy.
Employers must not use these exceptions to the detriment of its case by imposing two different sanctions for the same misconduct (giving warnings and dismissals at the same time), re-opening cases already concluded or expanding on charges after a disciplinary has occurred for the same conduct that should have been included in a previous charge. An employer cannot have multiple disciplinaries by simply tweaking the wording of the charges or by splitting of charges.
It is important that the company follow its disciplinary procedures and codes correctly and not overturn decisions made by appointed chairpersons who recommend a sanction. The company cannot just willy nilly convene further disciplinaries against an employee just because the outcome is not a favourable one for the employer. The amendments to the Labour Relations Act and the law provide both the employer and the employee with the right to challenge and review decisions through the DRC and the Labour Courts, the employee can claim Unfair Labour Practices and unfair dismissal claims at the DRC. (SA Revenue Services vs. CCMA & Others (2014) 1 BLLR 44 (LAC).
In a nutshell: It is recommended that the employer investigate allegations and charges levelled against employees to make sure that the employer has a proper case against an employee, so as to avoid situations of being “injured” by the double-edged sword known as Double Jeopardy as the consequences could be dire.
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