South Africa: When Deja Vu Results In A Breakthrough: The Defence Of Double Jeopardy In Labour Law

The defence of double jeopardy has its origins in criminal law and, in essence, provides that an accused person cannot be tried twice in respect of the same crime. Although it is a criminal law concept, employees facing disciplinary steps often raise it in the realm of labour law. Typically, this occurs in the situation where senior management decides to overturn a decision of a chairperson of a disciplinary enquiry not to dismiss an employee for misconduct. In the recent judgment of SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others the Labour Court (the "Court") had to consider this issue in a different labour law context.

Factual background

Mr Malatsi (''employee'') was employed by the Gert Sibande District Municipality (''employer'') in its finance department. The employer was alerted by its bank of possible fraudulent activities and it commissioned a forensic investigation. This uncovered irregularities that exposed the employer to a potential loss of approximately ZAR9.7-million. The investigation found that, between 31 January to 23 February 2012, there were several attempts made from the employee's computer to illicitly access monies held in the employer's bank account.

The employer decided to discipline the employee and convened a disciplinary hearing to consider the charge that the employee had failed to conduct himself with honesty and integrity in that he attempted to access the employer's bank accounts on 11 different occasions. There was also an alternative charge of fraud. The employee was found guilty and was dismissed. Aggrieved by this outcome, the employee referred an unfair dismissal dispute to the South African Local Government Bargaining Council.

The first arbitration award: the dismissal was unfair

The arbitrator accepted the employer's version that the employee's computer was used in an attempt to access the employer's bank accounts, and was concerned that the employee had shared the computer password with co-workers. However, the arbitrator found that there was no proof that the employee himself tried to access the accounts and consequently deemed the dismissal to be unfair. The arbitrator further found that the employee's "hands are also not clean, he cannot be reinstated with arrear wages as per his request and the period from his dismissal up to his reinstatement must be treated as a period of unpaid suspension." The employer took this decision on review to the Labour Court but the review application was dismissed.

The second arbitration award: employee guilty of gross dishonesty and failure to comply with IT policy

The employee returned to work and the employer issued another notice to the employee to attend a disciplinary hearing. This time, the charges against the employee were:

• gross dishonesty in that the employee intended to deceive the employer by sharing his computer-created password with other employees, whereafter his computer was used for fraudulent activities; and
• failure to comply with the employer's IT policy by sharing his computer's password with other employees.

After the second disciplinary hearing, the employee was dismissed and his dismissal was found to be fair in a subsequent unfair dismissal dispute referred to the Council. The employee then applied to the Labour Court to review and set aside the second arbitration award.

The present proceedings at the Labour Court: the defence of double jeopardy rejected.

The Court found that the employee's only ground of review was that his dismissal infringed the principle of double jeopardy. The Court examined the authorities and confirmed that the principle does not, in a labour law context, necessarily mean that the employer is precluded from convening another disciplinary hearing and imposing a more severe sanction or dismissing an employee for the same offence. The Court held that the ultimate determining factor was fairness. This means that a second disciplinary hearing in respect of the same set of facts would only be permissible if the circumstances justify it.

The employee's version was that the employer had convened another disciplinary hearing based on the same facts that led to him being found guilty and dismissed during the first disciplinary hearing. The employee argued that, in being dismissed for the second time, he was, in effect, being punished twice because the arbitrator in the first arbitration found that the period between his dismissal and reinstatement should be treated as an unpaid suspension.

The Court found that the charges against the employee in the second disciplinary hearing emanated from information that the employer did not have at its disposal at the first disciplinary hearing, i.e. the sharing of passwords and that it only became aware of this information as a result of the employee's evidence at the first arbitration. Furthermore, the Court held that the charges in the two disciplinary hearings were different. In the first disciplinary hearing, the charges centred around attempts to access the employer's bank account, whereas in the second disciplinary hearing, the charges centred around the sharing of passwords and the failure to comply with the employer's IT policy. This resulted in the employee's computer being used for fraudulent activities which exposed the employer to risk.

The Court ultimately ruled that the employee's interpretation of the first arbitration award and subsequent reliance on the defence of double jeopardy was "opportunistic" and found against the employee on this issue.

Conclusion

The Court confirmed that, in considering allegations of double jeopardy, fairness remains the yardstick against which the employer's conduct must be tested. It would be unfair if an employer was precluded from convening a second disciplinary hearing after it has "received new evidence of a significant nature" which would have influenced the outcome or sanction of the first disciplinary hearing.

The Court further confirmed that, in cases where the charges in the two disciplinary hearings are distinct, the defence of double jeopardy would not be applicable, because each hearing is a new hearing and must be decided on its own merits. This is the case even if the charges emanate from the same set of facts or event/s. The critical lesson for employers who find themselves having to charge an employee twice for misconduct emanating from the same set of facts or `event/s is that employers must ensure that the charges are not the same and/or that further evidence has become available to substantiate the charge.

Also of interest is the Court's implicit acceptance that employees can be subjected to further disciplinary action based on evidence that emerged during arbitration proceedings, even if this evidence was provided by the employees themselves.

Reviewed by Muzi Khoza, an Executive in the ENSafrica employment department.

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