When an employee commits misconduct, the employer must take disciplinary action against that employee. In some cases, employers also deduct the employee’s remuneration or withhold certain benefits as punishment.

Can this be regarded as double jeopardy? Is an employee being punished twice for the same offence? In Solidarity obo K Oelofse vs Armscor (Soc) Ltd (2018), the employee who committed gross misconduct was found guilty in a disciplinary hearing and was fortunate enough only to receive a final written warning. The company also had a remuneration practice where employees could earn a performance bonus.

In this case, the employee had exceeded the minimum requirements of the performance bonus policy. The employer, however, did not pay the employee the bonus. The performance practice policy stated that for employees to receive the performance bonus, they should adhere to the values and objectives of the company. Being found guilty of gross misconduct, although the employee performed well – it cannot be said that the employee was adhering to the company’s values. The employee subsequently filed an Unfair Labour Practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and raised “double jeopardy”, stating she was being punished twice for the same offence.

The CCMA found in favour of the employer. On review, the Labour Court agreed that a person could not be punished twice for the same offence and that this principle is grounded in the rule of law that if someone has been convicted or acquitted of an offence, they may not be charged twice for that same offence.

However, the Labour Court also ruled that the matter relating to the performance bonus is not a disciplinary matter. A bonus issue is not an issue of a conviction but a dispute relating to a benefit. The Labour Court’s analysis was that the employer’s decision to withhold the employee’s benefits due to the misconduct she was found guilty of could not be seen as unfair or unreasonable as the employee did not meet the values and objectives of the employer. Therefore, the Labour Court upheld the decision of the CCMA in favour of the employer.

Article By: Raina Doorasamy
Legal Assistant – CEO Durban