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An employee can challenge the outcome of a disciplinary hearing by following internal appeal proceedings or by referring it to the CCMA or another dispute resolution body. However, it happens from time to time that the employer is unhappy with the outcome of a disciplinary hearing chaired by a line manager or independent outside party. Can the employer nullify the proceedings, or change or appeal the outcome?

If an employee had been subjected to a disciplinary hearing and was given a sanction, the employer may not, as a general rule, subsequently impose a more severe sanction for the same transgression. Similarly, if a hearing had been held and an employee was found not to have committed the alleged transgression, that is the end of the matter. Conducting a new hearing in respect of the same allegations would be impermissible. An employer may therefore not “appeal” against the decision of one of its own managers tasked with conducting a disciplinary hearing. This would constitute “double jeopardy”. The principle underlying the prohibition of double jeopardy is that it is unfair to punish someone twice for the same thing.

There is a perception that the rule against double jeopardy is sacrosanct and that, once an employee has been let off the hook, or has not been dismissed where dismissal would have been appropriate, he or she is safeguarded against all further action for that transgression. This is not the case since the general rule stated earlier is subject to exceptions.

The labour courts and arbitrators held in a number of cases that whether or not an employer might re-open a case against an employee, or impose a more serious sanction, it is always a question of fairness to both the employer and the employee. It is therefore incorrect to assume, as some employers and trade unions do, that once a sanction has been issued against an employee, an employer may never change its mind about the matter.

For example, if an employee who committed serious misconduct and deserves to be dismissed, is mistakenly and contrary to the employer’s disciplinary code given, e.g. a written warning by a supervisor who is possibly not too well informed about the employer’s disciplinary procedures; or if information about the serious nature of the employee’s misconduct is not disclosed to the employer, or is not known at the time of the hearing, a new hearing may be conducted and may result in a more severe sanction being imposed if that information is disclosed at a later stage..

Furthermore, provided it has proper grounds for doing so and provided further that it complies with its own procedures, an employer may decide to reject a recommendation for a lenient sanction made by an outside chairperson and substitute that with a decision to dismiss. Finally, if it transpires that a chairperson conspired with an employee to ensure a lesser sanction than dismissal, an employer would be able to re-open the matter, conduct a fresh hearing and impose a harsher sanction.

The situations under which it may be fair to re-open a case or impose a more severe sanction will invariably relate to cases involving serious acts of misconduct (e.g. dishonesty) where the circumstances of the misconduct are not fully canvassed at the initial enquiry; where new information or evidence is subsequently exposed; or where a supervisor makes a hurried, ill-informed and inappropriate decision leading to a sanction not aligned with the employer’s own guidelines.

Written by Barney Jordaan of Jordaan • Stander for

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