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DOUBLE JEOPARDY

It is unfair to expose an employee to numerous disciplinary procedures arising from the same complaint. A company appoints a chairperson to decide on the outcome of disciplinary proceedings and the final decision of the chairperson becomes that of the employer. Reconsideration by the employer, of the chairperson’s decision, constitutes breach of the double jeopardy rule.

The double jeopardy rule applies in labour relations where the employer intervenes with the decision of the disciplinary chairperson by substituting the sanction with a more severe sanction. Double jeopardy is a defence that an employee may raise at a second disciplinary enquiry where the employee is anew charged with the same alleged offence. The second disciplinary enquiry is usually conducted by an employer who is dissatisfied with the initial sanction and has the objective to obtain a different, more severe result. This defence has also been raised at internal appeal proceedings after the employer has unilaterally changed the initial sanction or at a pre-dismissal arbitration in terms of section 188 of the LRA. The reconsideration of a disciplinary penalty by senior management, without the disciplinary code sanction revision, is viewed as a breach of the double jeopardy principle.

In criminal proceedings an accused person may raise the plea that he or she has previously been convicted or acquitted of essentially the same offence that he or she is charged with. In criminal law this defense is known as ‘Autrefois convict’. Further prosecution for the alleged offence is precluded once the accused person’s defense is successful.

The Constitution of the Republic of South Africa specifically protects every accused person from being tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted. This right forms part of the comprehensive right to a fair trial and provides a guarantee against being twice put in jeopardy or the doctrine of double jeopardy. This literally means that no one ought to be twice punished for the same offence.

The counterpart of double jeopardy rule in civil proceedings is the defense known as ‘exceptioreiiudicatae’. Harms asserts, that this plea is based on the irrebuttable presumption, that a final judgement, on a claim submitted to a competent court, is correct. This presumption prevents endless litigation and precludes bad faith that allows, demanding the same thing more than once.

The purpose of the double jeopardy rule is to prevent repeated attempts to convict an individual thereby exposing him or her to continued embarrassment and anxiety.

The double jeopardy rule applies to three types of situations in the employment context:

1) The rule bars recharging an employee for the same disciplinary offence after a finding of not-guilty (acquittal).

2) An employee may not be recharged on the same grounds after a finding of guilty (conviction).

3) The rule prohibits multiple sanctions for the same transgression.

Arequirement of the double jeopardy rule is that the allegation against an employee, in the second hearing, must essentially the same as in the first hearing. The test for double jeopardy is whether the allegation relates to the same alleged misconduct. It is therefore unfair for an employer to set aside a first disciplinary hearing and then to subject the employee to a rehearing when no justification exists for doing so.

Labour law promotes the principles of equity and fairness. Rigidity in the workplace discipline is an unfair approach. The Labour Courts have considered the application of the doctrine in labour relations and have relaxed the strict application by the industrial court to some extent.

The industrial court confirmed that an employer is not entitled to hold a second enquiry if it is not satisfied with the outcome of a first properly constituted enquiry. If higher management may feel that the finding in regard to guilt is incorrect or that a sentence is too lenient does not entitle it to retry the matter. Such a second enquiry would be an unfair labour practice.

However a second disciplinary enquiry may be opened against an employee depending whether it is in all the circumstances fair to do so, fairness must therefore justify a second enquiry. The same principles apply where the employer reconsiders a disciplinary penalty and substitutes it with a more severe penalty. The courts accepted that it is applicable to a situation where successive punishments were imposed even if, strictly speaking, two hearings were not held.

There may be exceptional circumstances in which a company must be able to intervene to reserve a decision on a sanction reached by a chairman of a disciplinary enquiry who has been appointed by them. A good example in this regard is whether the decision reached by the chairman of the enquiry has been induced by corruption. It is however important to amend the company disciplinary procedure that, management has the right to overturn decisions of subordinates that are out of line with standard practice. This is to eliminate unnecessary risks to the company

The double jeopardy rule therefore endorses the principle that it is unfair to jeopardise a person twice for the same alleged offence. The rule prohibits exposure to subjecting an employee to multiple disciplinary actions. The double jeopardy principle mainly applies to the domain of criminal procedure law. In labour relations, by analogy to criminal procedure law, the rule provides that it is therefore unfair to expose an employee to numerous disciplinary procedures arising from the same complaint.

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