The principle of double jeopardy refers to the general rule that an employee should not be disciplined twice for the same act of misconduct. This principle is rooted in the requirement of fairness, which is a cornerstone of labour relations and disciplinary processes.
In practice, double jeopardy most often arises when an employer disciplines an employee by issuing a warning for a specific incident and thereafter charges the employee in a disciplinary hearing for the misconduct committed in the same incident. This constitutes “a second bite at the cherry”.
The prohibition exists to promote fairness, consistency and the rule of finality in disciplinary proceedings. Employees should have certainty that once a disciplinary matter has been concluded, they will not be required to defend themselves against the same allegations again. Subjecting an employee to a disciplinary hearing for the same misconduct may be regarded as procedurally unfair and could render any subsequent sanction vulnerable to challenge at the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining council.
However, the principle of double jeopardy is not absolute. The courts and arbitrators have accepted that exceptional circumstances may justify a second disciplinary process. Such circumstances may include the discovery of new and compelling evidence that was not available during the original hearing, serious procedural irregularities in the initial process, or situations where the disciplinary code specifically provides for an appeal or review mechanism. A second hearing may also be justified where the chairperson exceeded his or her authority or where fairness clearly demands that the matter be reconsidered.
Awareness and proper application of the principle of double jeopardy can assist employers in maintaining fair, consistent and legally compliant disciplinary practices. Employers should therefore exercise caution before reopening a disciplinary matter. A properly conducted hearing and a final outcome should ordinarily bring the matter to an end. To avoid disputes, disciplinary policies should clearly define the powers of chairpersons and provide for internal appeal or review procedures where appropriate.
For guidance before reopening a disciplinary matter, contact Law@Work for expert assistance.
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