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A chairperson in a disciplinary hearing finds an employee not guilty of a serious transgression while senior management believes the person should have been found guilty. Or the employee is found guilty but, contrary to what the employer expects, is given a sanction short of dismissal. May management interfere and, for example, conduct a fresh hearing before another chairperson? May a sanction less severe than dismissal be increased and, if so, must a further hearing be held before this can happen?

The starting point in answering these questions is the principle applicable in criminal as well as employment law, that once the chairperson has made a finding and decided on a sanction that he or she deemed appropriate, the hearing is complete and the chairperson becomes what lawyers call, “functus officio”, i.e. the matter is closed and neither the chairperson not the employer has any further powers to change what has been decided. This ensures certainty in decision-making as it would be unfair to leave employees guessing about their lot. At the same time, however, it has been recognised that it would be unfair to saddle an employer with wrong decisions that have an ongoing adverse impact on its business. So, clearly, a balance needs to be found between the interests of the employee and the employer. As will become clear below, the courts have provided guidance in this regard.

The “double jeopardy” rule covers three situations: it prohibits re-charging an employee for the same disciplinary transgression after a finding of not-guilty; an employee may not be re-charged on the same grounds after a prior finding of guilty; and an employer may not impose multiple sanctions for the same transgression. However, as is the case with most rules, the double jeopardy rule is not absolute. For example, in the decision of BMW v Van der Walt the Labour Appeal Court came to the rescue of employers that are disgruntled with a disciplinary outcome by holding that whether or not a second disciplinary enquiry may be opened against an employee would depend upon whether it is, in all the circumstances, fair to both the employer and the employee to do so. Conducting a second disciplinary enquiry for the same transgression therefore is not unfair in itself as fairness may justify a second enquiry. The same principle applies where the employer reconsiders a disciplinary penalty and substitutes it with a more severe penalty.

In Branford v Metrorail Services an employee was dismissed for dishonesty after first receiving a slap on the wrist from his supervisor for receiving payment from rail passengers without issuing tickets to them. The court held that the principle established in BMW v Van der Walt is not only applicable where someone is found not guilty and re-charged, but also to the situation where successive punishments were imposed, i.e., first a lesser and then a more severe sanction for the same transgression. In NUMSA obo Walsh v Delta Motors Corporation a supervisor took informal disciplinary action against an employee who allegedly perpetrated serious misconduct. The employer was dissatisfied with the supervisor's informal approach and took further disciplinary action based on the same allegations by conducting a formal enquiry. The employer’s decision was upheld.

What is clear from these and similar cases, however, is that courts and arbitrators will only permit interference with the decision of a chairperson of a properly constituted disciplinary hearing in exceptional circumstances. These include situations where two or more employees are treated inconsistently by one or more chairperson(s) for the same transgression, without good reason; cases where a disciplinary decision was induced by corruption (i.e., the chairperson was bribed by the employee or his/her representative); if the non-compliance is a relatively blatant departure from the accepted standards and norms with regard to sanction (e.g., the employer’s consistent zero tolerance approach to shrinkages was ignored by the chairperson); or if the initial hearing was not in compliance with the employer's disciplinary code and the facts involved were not properly canvassed.

Double jeopardy does not arise when an employee commits a new offence to cover up the first. This happened in SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others where an employee, who was originally found not guilty of dishonesty, was later charged with new allegations of dishonesty (involving her covering up the first instances of dishonesty), based on information later received from the employee’s former husband. The rule also does not apply where new and material information comes to light which was not in the employer's possession at the time of the first enquiry and which, if true, would materially have altered the outcome of the disciplinary enquiry;

Does it make any difference if the employer’s disciplinary procedure makes specific provision for management’s power to overrule a chairperson’s decision? Or if it states that the chairperson’s findings are just recommendations and not final decisions? The cases seem to suggest that such provisions will certainly assist an employer who wants to re-open a case, but they are not in themselves sufficient to render interference fair. The employer would still have to show that exceptional circumstances exist and that it complied with the rules of natural justice when it imposed a different finding. In other words, apart from being forewarned that a disciplinary decision might be reviewed, the employee in the specific case should be given an opportunity to make submissions - verbally or in writing - why this should not happen in his or her specific instance and, if these submissions are not accepted, the employee should be provided with plausible reasons for this. Failure to do this will render the second decision at least procedurally unfair.

To summarise: even where an employer reserves the right in its disciplinary procedure to intervene with the decision of a disciplinary chairperson, the intervention must, nevertheless, be justified. Identifying exceptional circumstances is not an easy task, in view of the test of fairness. Employers should therefore ensure that their chairpersons are properly trained and supported in their decision-making by knowledgeable internal or external advice.

Barney Jordaan for

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