Double Jeopardy: Charging an Employee Twice

There are instances where employees have been exonerated at a disciplinary hearing or issued a “light” sanction such as a written warning, and where the employer wishes to pursue the same allegations again in order to secure the employee’s dismissal. This can give rise to a situation of so-called “double jeopardy”.

Generally, the employer only gets ‘one bite at the cherry’ and an employee cannot ordinarily be charged again with the same misconduct that he or she was either found guilty or not guilty of.

The courts have, however, found that this is not an absolute rule and there is no absolute prohibition on this. They have accepted that there are instances where it is permissible to charge an employee again.

In BMW (South Africa) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC), the Labour Appeal Court found that an employee may be subjected to further disciplinary action even though a sanction in respect of the same offence has already been imposed, provided that it is fair to do so.

In Bamford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC), the Labour Appeal Court reaffirmed that the question was ultimately one of fairness taking into account both the interests of the employee and the employer. It also found that it is not necessary to establish exceptional circumstances in order to charge an employee again.

In MEC for Finance, Kwa Zulu Natal & another v Dorkin NO & another [2008] 6 BLLR 540 (LAC), the Labour Appeal Court took a slightly different apporach to Bamford. Although accepting that the test was ultimately one of fairness, it found that ordinarily, it would be unfair to put an employee through further disciplinary proceedings unless there are exceptional circumstances warranting this.

An example of a situation where it may be permissible to charge an employee again, would be where new evidence of extremely serious misconduct has come to light which the employer did not and could not have obtained during the previous proceedings, and which the employee deliberately concealed. In that case, it may be necessary for that evidence to be tested at a further disciplinary hearing.

Ultimately, the courts are unanimous on the central principle that the main consideration when it comes to double jeopardy is fairness to both sides.