The Labour Appeal Court (LAC) has recently taken the stance that not all cases where an employee has been disciplined twice for misconduct emanating from the same incident, will necessarily constitute double jeopardy. The court will distinguish between the charges levelled against the employee in each instance, and will ultimately rule in favour of fairness.

In Mahlakoane v SA Revenue Service (2018) 39 ILJ 1034 (LAC), the appellant challenged the decision of the Labour Court (LC) to review and set aside a Commission for Conciliation Mediation and Arbitration (CCMA) award issued in her favour, the latter ruling that her dismissal from the South African Revenue Service (SARS) had been unfair.

The appellant, who had been receiving a child support grant in terms of the Social Assistance Act, was appointed to work for SARS and as a result, her entitlement to the grants ceased. Notwithstanding her appointment, the appellant continued to draw the grants. When the matter came to the knowledge of SARS, the appellant was charged with, amongst others, fraud and subjected to a disciplinary hearing (the first disciplinary hearing). She produced two South African Social Security Agency letters demonstrating that she had requested the payment of the grant to be stopped and as such, the Chairperson only found her guilty of continuing to receive the grants despite not qualifying therefor. As a sanction, she was issued with a final written warning.

Two years later, evidence surfaced that the letters produced at the first disciplinary hearing had been forged. SARS charged the appellant with at least five counts of misconduct, including fraud and forgery (the second disciplinary hearing).

In the second disciplinary hearing, a sanction of dismissal was imposed on the appellant. She successfully challenged her dismissal in the CCMA, however, the LC reviewed and set aside the CCMA’s ruling.

The LAC supported the view held in previous LAC decisions, that the principle of “double jeopardy” entails that an employee generally cannot be charged again with the same misconduct that he or she was either found guilty or not guilty of; and that there are, however, instances where breaches of this principle can be condoned, with the paramount consideration being fairness to both sides.

Notwithstanding the above view, the LAC drew a distinction between the charges levelled against the appellant in the first and second disciplinary hearings and held that the double jeopardy principle did not come into consideration in this case. It held that the main allegations in the first disciplinary related to the appellant continuing to take grants knowing well that she no longer qualified. The charges in respect of the second disciplinary hearing, on the other hand, centered on the falsification of the dates on the letters, which had never been in contention in the first disciplinary hearing. The LAC dismissed the appellant’s application with costs.

Employers, therefore, ought to bear in mind that where new facts relating to an already concluded disciplinary process arise, the double jeopardy principle will not be an absolute bar to revisiting the matter but fairness to the parties will ultimately be the determining factor as to whether the disciplinary process can be revisited.