One offence, two hearings?
Can a company subject an employee to a second disciplinary hearing for the same offence? Wouldn't that be double jeopardy?
A case before the Labour Court found that in certain circumstances, the employer can have ‘two bites at the cherry'.
Facts of the case
During August 2000, Metrorail noted irregularities in the petty cash withdrawals made by an employee, Mr Branford. A meeting was called, which was attended by Mr Branford, Mr Pillay, Mr Smith and Mr Palmer. After the meeting, Mr Pillay instructed Smith to finalise the matter. Mr Palmer called Mr Branford to his office and decided to issue a warning, which was recorded on his disciplinary record. An internal audit into the issue was performed and recommended that Branford be charged with forgery and dishonesty in respect of eight fraudulent claims (amounting to R834). The audit report was not based on new facts. Branford was then charged with forgery and dishonesty and was dismissed following a disciplinary hearing.
Branford referred a dispute to the Bargaining Council. The Arbitrator found that the dismissal was unfair on the basis that Branford had been disciplined twice for the same offence, and ordered his re-instatement. Metrorail successfully reviewed the award in the Labour Court. Branford then pursued an appeal against the Labour Court's decision.
The legal issue was whether the formal disciplinary action taken against Branford amounted to double jeopardy.
The appeal was dismissed by Judge Jafta (Judge Nicholson concurring) in the majority judgment (Judge Willis dissenting). Both the minority and majority judgments refer to the decision of BMW (SA) (Pty) Ltd v van der Walt (2002) 21 ILJ 113 (LAC) in which the following is stated:
"Whether or not a second disciplinary enquiry may be opened against an employee would, I consider, depend on whether it is, in all the circumstances fair to do so. I agree with the dicta in Amalgamated Engineering Union of SA & Others v Carlton Paper of SA (Pty) Ltd (1998) 9 ILJ 588 at 596 A-D, that it is unnecessary to ask oneself whether the principles of autrefois acquit or res judicata ought to have been imported into our labour law. They are public policy rules. The advantages of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law, fairness and fairness alone is the yardstick….I should make two cautionary remarks. It may be that the second enquiry is ultra vires the employer's disciplinary code....That might be a stumbling block. Secondly, it would probably not be considered fair to hold more than one disciplinary enquiry save in rather exceptional circumstances."
The dissenting judge found that:
• The previous enquiry was valid and no new evidence was uncovered between the first and second enquiries.
• The Arbitrator's reasoning cannot be said to have been so flawed that one must conclude that there had not been a fair adjudication of the issue.
• The Arbitrator did not commit a gross irregularity in finding that the dismissal was unfair, and accordingly would have upheld the appeal.
The Court held that:
• The correct interpretation of the test to be applied to decide whether or not an employer is entitled to subject an employee to more than one disciplinary enquiry, is whether or not it would be fair for the employer to do so, not that it would only be permissible in exceptional circumstances. The Court further held that the concept of fairness applied to both the employer and the employee.
• On the facts, the Court held that:
"In these circumstances it would manifestly be unfair for the Company to be saddled with a quick, ill-informed and incorrect decision of its employee who misconceived the seriousness of the matter and hurriedly took an inappropriate decision leading to an equally inappropriate penalty".
The Arbitrator's award thus deviated from the principle of fairness. The reasons advanced by the Arbitrator did not logically lead to the conclusion he arrived at, as he was too focused on the idea that Metrorail was bound by Palmer's action, irrespective of whether Palmer's decision was correct or not.
• The Arbitrator committed a gross irregularity because he failed to consider whether or not in the circumstances of the present case, Metrorail was entitled to hold the enquiry that led to Branford's dismissal, and if so whether the sanction of dismissal was fair.
The appeal was thus dismissed and the dismissal stood.
The finding of the Court gives employers not satisfied with a sanction imposed by an enquiry a lifeline. But it is problematic, in that certainty must now give way to arguments that the disciplinary steps taken were not fair insofar as the Company is concerned. Employees will certainly argue that the judgment is incorrect as it allows employers to have "two bites at the cherry".
When new facts are introduced it would be reasonable to re-open the hearing, but where no new facts are to be introduced, the re-opening of the hearing, because the Chairman erred in coming to his decision, would negate the whole purpose of dispensing with disciplinary action speedily to obtain finality.
Written by Sbu Gule, director at law firm Deneys Reitz