Posted: 09 Oct 2017, 17:10
The supervisor issued a first written warning to an employee who was absent from duty for two days (first offence) even though he was told that the leave is not authorised. The warning is valid for 6 months. After 1 year and 6 months i was instructed to charge this employee with misconduct. Iam thus having 3 questions Nr1 Is it lawful or unlawfull two punish someone twice for the same offence? 2. Is it lawfull to withdraw a warning then charge the staff member? Which statutes prohit such action if it is indeed unlawful?
Re: Double jeopardy
Posted: 14 Oct 2017, 15:50
The article below will assist:
What is double jeopardy?
Much has been written on this subject, which still seems to contain grey areas or misunderstood conceptions in the minds of employers.
Double jeopardy or double punishment applies in instances where a particular sanction has been enforced, and then subsequently a further or harsher sanction is enforced for that same act of misconduct.
In other words, double jeopardy could be summarized as instances where:
•a second prosecution for the same offense after acquittal takes place; or
•a second prosecution for the same offense after conviction takes place; or
•where corrective measures (“punishment”) are applied more than once for the same offence.
In Hospersa obo Lokoeng / Provincial Dept of Health Limpopo, the applicant was dismissed for being absent without leave. He had previously been given a number of warnings for poor timekeeping. The applicant stated that his dismissal was unfair because he had already been punished for the offense in question. The applicant acknowledged that he had been absent without leave in the period mentioned, and he further acknowledged that he was aware of the company rule in this regard. The question to be decided was whether the respondent had punished the applicant twice for the same offense. There was no evidence led to show that there was any incidents of absence apart from those for which the employee had been issued warnings. The applicant was dismissed through the disciplinary hearing, after having been found guilty of unauthorised absence from work.
On various occasions of absence, the applicant had been counselled and had been given warnings, up to and including a final written warning, for all the different incidents of absenteeism without authority. He had previously received sanctions of unpaid leave against him, until the incident where he incurred a final written warning. No formal proceedings had been followed previously, and all the warnings issued and sanctions issued in the past were given solely at management's discretion without any formal hearings.
After having been given a final written warning, he was then afterwards officially charged and notified of a disciplinary hearing, where he was found guilty (a second time of all the previous offences) and was dismissed. The applicant acknowledged that he had been charged, found guilty and dismissed for absenteeism on the same dates that he already been given the previous warnings on - including the incident on which he had received a final written warning.
The applicant acknowledged that on the first incidents, he was given counselling, he had then received two further written warnings for two different incidents of unauthorised absenteeism, and he had then been given a final written warning for a further incident of A.W.O.L. and a second final written warning for a further incident of A.W.O.L. The respondent then held a final and formal disciplinary hearing, on which all these previous issues were addressed, and the applicant was dismissed for these previous issues which had already been heard and sanctions applied.
At the arbitration, the applicant's representative stated that the dismissal was unfair, in that the respondent had charged the applicant a second time for the various incidents. Alleging (quite correctly) also that the onus was on the respondent to prove that the dismissal was fair, and secondly that the respondent had failed to prove that the dismissal was fair, the applicant was simply not going to lead any evidence against the respondent because the respondent had failed to discharge his onus regarding the burden of proof. Quite obviously, the employee cannot be dismissed for previous incidents of misconduct on which he has already been subjected to a disciplinary hearing and a fair sanction has been applied.
In this particular case the respondent was awarded reinstatement, payment of back-pay of all salary and benefits that he had forfeited from the date of dismissal, and the award was to be implemented within 30 days of the date of the award.
Where double jeopardy occurs it is often because the employer needs to get the employee out by hook or by crook. This could be due to a personality clash, to the fact that the employee is considered to be a trouble- maker or because the employer has genuinely lost trust in the employee. Whatever the reason, the employer is not free to act on it before ensuring that the dismissal would be fair. Neither can the employer dismiss the employee for reasons that the employer feels are fair.
What is fair or not is determined by the following:
•The legal provisions of the Labour Relations Act (LRA);
•Complex principles of fairness emanating from case law;
•The factual circumstances of each individual case; and
•How the CCMA or bargaining council is likely to react to the case.
The lay employer will not easily be able to assess his/her case against these four factors. This is because the employer is often too emotionally embroiled in the case and he/she might not have the legal knowledge and analytical ability necessary to assess the merits of the case accurately and objectively.
Can we have a second hearing if the employee was found not guilty?
We recently received this question on our forum (http://phpbb.labourguide.co.za/index.php):
“After an enquiry the employee was found guilty and dismissed. He appealed against the decision of the Chairman; the Appeal Chairman overturned the decision of the initial Chairman. Can we reinstate the employee and the charges, in other words charge the employee again?”
In cases were an employee is punished twice for the same incident of misconduct or poor performance, the term "double jeopardy" has come to be used.
Normally, such a second round of disciplinary action would be found to be unfair.
However, one view is that a second disciplinary process might be justified if the employer is able to present evidence that
•Is new and has therefore not been presented at the first disciplinary hearing;
•Is relevant to the original charges; and
•Is significant enough to merit a new hearing.
However, even this controversial view is not being properly interpreted.
One finds that employers who continue to:
•Give employees warnings and institute dismissals at the same time;
•Reopen cases that should be left alone;
•Set up new disciplinary hearings without good reason after the employee has already been disciplined for the offence; and
•Open new hearings with newly formulated charges, only to find that the "new" charges are merely a different way of wording the same charges in respect of which the employee managed to avoid dismissal.
Some case law may serve as a timely warning to employers to proceed with extreme care in these matters. In the case of Rakgolela vs. Trade Centre (2005, 3 BALR 353) the employee was dismissed for misappropriation and misuse of a company cell phone. He lodged an internal appeal in terms of the employer's appeal policy.
On appeal the dismissal was overturned and replaced with a final warning. The employer then charged the employee again for the same incident of taking the cell phone and added a new allegation to the charge sheet - that of telling lies during the original hearing. After the employee's original dismissal had been overturned on appeal, the SA Police Service reported that the employee had lied about not having taken the cell- phone home. The employer used this report as ammunition to recharge the employee and fire him a second time. However, the fact that the employee had lied had already been established by the appeal chair- person.
The CCMA commissioner therefore found that there had been no new evidence justifying the second hearing and dismissal and that the employee had been the victim of double jeopardy as he had been disciplined twice for the same misconduct. The employer was ordered to pay the employee 12 months' remuneration.
Can the employer appeal against a sanction?
In generally accepted terms, double jeopardy means that an employee is tried twice for the same offence - two disciplinary hearings are held for the same offence - that is double jeopardy.
For example, a presiding officer hands down a sanction of a final written warning. The employer is not satisfied - he cancels the disciplinary hearing and the sanction, and convenes another disciplinary hearing for the same offence - probably disguised in different wording - because he wants the employee to be dismissed.
Double jeopardy may also occur where an employer reviews the sanction imposed by the presiding officer, and unilaterally changes it to a more harsh sanction - that might also constitute a double jeopardy.
In Solidarity obo Van Rensburg / Rustenburg Base Metal Refineries (Pty) Ltd  9 BALR 874 (P), on 13th July 2007, with the Honourable CE Watt-Pringle SC, Arbitrator, presiding, this question of double jeopardy was addressed.
Briefly, the applicant employee had been charged with sexual harassment, using abusive language, and assault. The presiding officer at the disciplinary hearing found him guilty of using abusive language and assault, but not guilty of sexual harassment.
The presiding officer imposed a final written warning, valid for six months. A month later, the employee was informed that, having considered the verdict and sanction, the company had decided that the sanction of a final written warning was unjustifiable and inappropriate, and that the company had accordingly decided to appoint a new chairperson to review the matter. The employee declined the invitation to make written representations to the new chairperson, but later made oral submissions. The new chairperson found the employee guilty of all three charges and substituted the original sanction with a sanction of dismissal.
The employee submitted that this amounted to double jeopardy, having been tried twice for the same offence. At arbitration, the employee submitted that the company was not entitled to do this. At the CCMA arbitration, agreement was reached by the parties to refer the matter to private arbitration. The arbitrator at the private arbitration was to decide “whether the respondent (employer) could, in all fairness, review, set aside and impose a more severe sanction, to wit – dismissal - then the sanction imposed by the chairperson or presiding officer appointed by the respondent to hear the disciplinary enquiry, when the respondent's disciplinary code and procedures do not specifically provide for such a review - although it also does not expressly prohibit such a procedure. The parties agreed that if the answer to this question was in the negative, the merits of the dismissal would be placed before another arbitrator.
On the question of whether the company was entitled in principal to review a decision it considered unjustifiable, the arbitrator accepted that discipline in the workplace involves a balance between the interests of the employer and the employee. However, this does not mean that an employer is entitled to override his disciplinary procedures merely because he considers a sanction too lenient. It was also accepted that that employers are entitled to determine their own disciplinary procedures, and such procedures might include, or make provision for, an appeal by the employer against findings or sanctions imposed by the chairperson or presiding officer.
In this particular instance, the employer’s disciplinary procedure did not make such a provision – but also did not prohibit it. It is an interesting point for employers to note that they can make such a provision in their disciplinary procedure - a provision whereby the employer would be entitled to review the decision made by the chairperson of the disciplinary hearing. There are instances where the chairperson of a disciplinary hearing, having not been properly trained, or lacking in knowledge of correct procedure and labour law, or perhaps he is unfamiliar with the employers disciplinary code, or perhaps is plainly and simply incompetent, may return a ridiculous finding regarding a sanction, which, in the words of the case mentioned may be “manifestly and justifiable and shockingly inappropriate.”
In such cases, the employer is faced with a big problem - he is between the devil and the deep blue sea. He appointed the chairperson - his disciplinary procedure makes no provision for a review of the chairperson's finding - and the employer is therefore, by and large, stuck with it. The judgement in the case we are considering went on to say that the right to review the sanction imposed by a presiding officer appointed in terms of a disciplinary code could arise in one of two situations.
•where the facts available to the employer at the time of the disciplinary hearing did not adequately illustrate the gravity of the employee's conduct (in other words, new evidence has been revealed or found) and
•where the presiding officer's decision was so stupid, or unjustifiable in the circumstances, or ridiculous, given the facts that he was able to consider, as to warrant the inference that he failed to apply his mind, or where the disciplinary code has been flouted.
The arbitrator noted that it was not clear whether an employer is entitled, unilaterally, to review its own disciplinary actions in a manner that is not provided for in its own disciplinary code. The arbitrator nevertheless decided that the employer was entitled to do so, because disciplinary codes constitute only guidelines, and employers are permitted to depart from their disciplinary code provided that it does not prejudice the employee, and that it is the presiding officer's duty to apply the disciplinary code and the standards of conduct set by the employer. The arbitrator also noted that even in criminal law, a re-hearing is permitted if some or other material irregularity is revealed - what the Americans term a "mistrial”. In addressing the matter of the company's justification for embarking on a review procedure, the arbitrator noted that whilst the first chairman’s written reasons for his verdict were not very clear, it was not difficult to understand the reasoning behind his verdict - and especially the reasoning for finding the employee not guilty of sexual harassment. Some of the reasons were that in this employment situation there was a “culture of ribaldry” in which both the employee and the complainant had participated and which had not particularly offended a female colleague of the complainant. The chairman had reasoned that in this context, i.e. the widespread use of “ribald language” with sexual connotations in the workplace, made it a difficult to conclude that the accused employee was aware that his utterances were unwanted, or that he persisted with his behaviour after the complainant had objected.
These two elements are essential elements in the offence of sexual harassment - but the chairperson of the disciplinary hearing reasoned - quite correctly - that due to the circumstances, these elements had not been proved and he therefore found the employee not guilty of sexual harassment.
The arbitrator found that based on this, the ruling made by the chairperson of the second hearing was a fallacious and unfair conclusion. The only basis on which the company had justified overturning the chairperson's decision was that the employee occupied a senior position, and could not therefore hide behind the "culture" of the workplace. The arbitrator also noted that to argue that the employee had failed to maintain a proper standard of decorum was one thing - but it was quite another thing to accuse him of sexual harassment. The presiding officer's decision to impose a final written warning for the charge of using ribald or abusive language could not therefore be said to be inappropriate to the extent that it warranted interference on a review by the employer. The test as to whether or not a second disciplinary enquiry may be opened against any employee depends upon whether it is fair, in all the circumstances, to do so. It was noted that in labour law, fairness - and fairness alone - is the yardstick. The employer must also be careful not to contravene his own disciplinary code. Generally, if his procedure does not provide for the review of the decision of the presiding officer in a disciplinary hearing, then he cannot do it. If his procedure does provide for it, then he can do it. But again it must be emphasised that he can only do it if it is fair, considering all the circumstances, to do so.
In the case we are looking at, it was also found that it would probably not be considered fair to hold more than one disciplinary enquiry, except in very exceptional circumstances. This would imply that even if the employer has made provision for such a review in his disciplinary code, that procedure could not be applied simply willy-nilly to every disciplinary hearing - there would have to be exceptional circumstances to warrant the employer invoking that procedure.
The question addressed was whether an employer is bound by the outcome of the disciplinary process which he has adopted in his disciplinary code, or whether, in the event that senior management is dissatisfied with the outcome, it may overrule its own disciplinary process by unilaterally instituting a further procedure, with the possible consequence of a more onerous sanction against the employee. The arbitrator was of the view that the principle of whether or not, considering all the circumstances, it would be fair to hold a second disciplinary hearing should apply, and that the principle of fairness - and fairness alone -should be the yardstick.
Is it double jeopardy if we issue a warning and not pay the employee for unauthorized absence from work?
It is probably a generally misunderstood term. Questions like “the employer imposed a sanction of three days unpaid leave for the unauthorised absence, plus a written warning. Is that not a double penalty or double jeopardy?” Double Jeopardy has nothing to do with the sanction imposed.
Based on the provisions in section 34 of the BCEA there seems to be a misguided perception that employees must receive their full salaries at the end of the month regardless whether or not they were actually at work.
A very good example would be if an employee went on sick leave and upon return did not hand in a sick note as required by section 23 of the Basic Conditions of Employment Act; or the employee simply just did not report for duty and could not furnish any valid reasons for the unauthorized absence on that specific day. In terms of section 20 (6) of the BCEA an employer must grant an employee, at the written request of the employee, annual leave during a period of unpaid leave. But what happens if the employee does not have any annual leave available, do we pay the employee for that day or do we reduce the employee’s salary? The first clue should be that the BCEA actually makes mention of unpaid leave but let us first look at section 34 of the BCEA that deals with deductions from employee’s remuneration.
(1) An employer may not make any deduction from an employee’s remuneration unless —
(a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or
(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.
Based on this section of the act employers wrongly assume that payment may not be withheld from an employee that did not work. This is not true. Under common law, statute law and the employment contract there is an obligation on the employee to be at work and to actually work in order to be remunerated.
Let us look at Chapter 1 of the BCEA - Definitions, purpose and application of this act. In this chapter;
•remuneration means “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the state”.
•Wages means “the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week”.
•an employee is described as “any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration”.
In the Labour Relations Act “working hours” is described as “those hours during which an employee is obliged to work” and the Encarta English dictionary describes the word “work” as “paid job - paid employment at the job” and “time spent at place of employment”. The Oxford dictionary defines “work” as “activity involving mental or physical effort done in order to achieve a result. Such activity as a means of earning income.” From the above it is abundantly clear that an employee is expected to be at work and to actually work in order to be remunerated. The fact that the employee was paid less than what he or she would ordinarily receive at the end of a week or month does not mean that a deduction was made from the employee’s remuneration. The employee was merely paid for work done and not paid for work not done, resulting in a lesser salary.
The fact that the employee is not paid for such unauthorized absenteeism is not punitive of nature and the employer will be within his right to issue a warning for such offences.
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