An employee was given a final written warning “on-the-spot” by the chairperson after being found guilty of misconduct at a disciplinary hearing. The employer is unhappy with the sanction and lodges an appeal to have the sanction overturned and subsequently changed to a summary dismissal. Would this amount to “double jeopardy” since the employee has already signed the final written warning, or is the employer entitled to alter the sanction?

The “double jeopardy” rule covers three situations:
1. It prohibits re-charging an employee for the same misconduct after a finding of not guilty;
2. an employee may not be re-charged on the same grounds after a prior finding of guilty;
3. and an employer may not impose multiple sanctions for the same misconduct.

In the Labour Appeal Court case of BMW v Van Der Walt, the Court held that the doctrine of double jeopardy in the labour environment is not absolute, and an employer’s intervention with a chairperson’s sanction may be justified if it is in the interest of fairness.

Our Courts have held that the chairperson of a disciplinary hearing is clothed with the persona of the employer and that the chairperson’s decision is that of the employer. Our courts have also held that courts or arbitrators may only interfere with a chairman’s decision in exceptional circumstances.

In the Labour Appeal Court case of SAMWU obo Mahlangu v SALGBC, it was held that where there is a collective agreement in place that regulated the relationship between the parties, the parties are bound by the contents of such agreement. In this matter, the collective agreement provided that the chairperson’s finding is final and binding. The Court held that:
“Under circumstances in which the employer unilaterally assumed the power to determine the sanction to be imposed whereas it was bound by an agreed peremptory code assigning such power to an appointed chairperson, and where it did not give effect to the sanction recommended by the only person entitled to decided on it, the employer’s dismissal of Mahlangu was in flagrant breach of the provisions of the code … its action had the effect of the sanction being decided by someone other than the only person authorised by the code to do so.”

Should a collective agreement or the employers’ disciplinary code provide that the decision of the chairperson is final and binding, the employer may, as a general rule, not interfere with the decision of the chairperson. In Samson v CCMA, the Court held that an employer may revisit a disciplinary penalty imposed by a chairperson if it is fair to do so.

Our courts have held that an employer’s interference with a sanction that was imposed by a chairperson will be procedurally unfair if the employee was not afforded the opportunity to make representations on the sanction, irrespective of whether or not the employee pleaded guilty to the charges. This is in line with the audi alteram partem rule, which dictates that the employee has the right to respond to the evidence against him/her.

Although our courts have conflicting views on whether or not a “new” disciplinary enquiry must be held to justify the changing of the sanction, the Court in the case of Samson v CCMA, accepted that the right afforded to the employee to appeal the altered penalty met the requirement of procedural fairness as the employee was afforded the right to state her case.

In Branford v Metrorail Services the Labour Appeal Court held that;
“it would be manifestly unfair for an employer to be saddled with an inappropriate decision of one of its employees who misconceived the seriousness of the matter and that disregarded the employer’s disciplinary procedures.”

Whether or not an employer will be able to alter the sanction imposed by a chairperson will depend on the facts of each case. Where a collective agreement or disciplinary code provides that the chairperson’s finding is final and binding, it would not be easy for an employer to justify altering the sanction unless exceptional circumstances exist and if it would be in the interest of fairness.

Article by: Etienne Fourie
Dispute Resolution Official – East London