HomeOpinion & AnalysisColumnists‘A second bite of the cherry’ can be fatal

‘A second bite of the cherry’ can be fatal

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Punishing a person twice for the same offence is called double jeopardy and is not acceptable in criminal law. The concept of double jeopardy has its roots in ancient Greek and Roman law.

In 355BC, Demosthenes of Athens said: “The law forbids the same man to be tried twice on the same issue.” In many countries, protection against double jeopardy is a constitutional right. For example, in United States law, double jeopardy is prohibited by the Fifth Amendment to the Constitution which states that no person “shall be subject for the same offence to be twice put in jeopardy of life and limb”.

The principle of double jeopardy is also applicable to labour law. In a labour law context, Dr J Grogan’s book Workplace Law defines double jeopardy as follows: “Where employees have been acquitted at a disciplinary enquiry, or the presiding officer has imposed a penalty/sanction less severe than dismissal, they cannot generally be subjected to a second enquiry on the same offence. Nor may management ignore the decision of a properly constituted disciplinary enquiry and substitute its own decision. A dismissal in such circumstances would invariably be unfair”.

It is frequently the case an employee who commits an offence is issued with a warning by his or her line manager. When the same offence is brought to the attention of a senior manager, he may be of the view the penalty was too lenient and substitute it with a dismissal.

Sometimes due to a personality clash, the employer sets out to get rid of the employee out by hook or by crook. The employee could be considered a troublemaker or perhaps the employer has genuinely lost trust in the employee.

When that happens, the employer gets emotionally embroiled in the case as to overlook the legal necessity to assess the merits of the case accurately and objectively.

Double jeopardy is unlawful. There are many reasons why it is not permissible and some of these include:
To prevent employers from abusing their superior resources to wear down and wrongly convict an innocent employee. Justice Hugo L Black in Green v United States (1957) put it succinctly when he explained: “the underlying idea . . . is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal . . . compelling him to live in a continuing state of anxiety, as well as enhancing the possibility that even though innocent may be found guilty”.
This is equally relevant in the employment context.
To prevent employers from re-opening hearings with charges disguised as “new” when in fact the employee is being charged for the same offence that he or she has already been found not guilty.
To preserve the finality and integrity of disciplinary decisions which would be jeopardised if employers were allowed to ignore unsatisfactory outcomes.

In exceptional circumstances, employers may be allowed to seek “a second bite of the cherry” without exposing employees to double jeopardy.
When compelling new facts — or evidence — not available during the first hearing are later brought forward or discovered, a second hearing is necessary. It may be discovered that a witness willfully or negligently gave a wrong testimony.

The acquitted employee may later make a credible confession. If the initial penalty was grossly irrational or the presiding officer did not apply his mind, a rehearing may be warranted. Where a hearing terminates prematurely without a judgment of guilty or not, a second hearing cannot be considered to put an employee in double jeopardy.

If judgment in the first trial has been invalidated, for example by the courts due to procedural irregularities, the employer may be empowered to conduct fresh proceedings on the same matter. In all these circumstances, it would be grossly unfair to prevent employers from conducting second hearings.

There is always confusion on the part of employees when they are charged for an offence both at the criminal court and at a company disciplinary hearing. When the employee is acquitted at the criminal court and later called to appear before a company disciplinary committee, he or she raises the issue of double jeopardy. That is not correct.

Criminal and civil proceedings serve different purposes. You can still be tried in a company hearing and be convicted even though you may have been acquitted by the criminal court. The classic historic case is of American football legend, Orenthal James Simpson. The state of California prosecuted Simpson over the death of Nicole Brown Simpson (his former wife) and Ronald Lyle Goldman (her boyfriend). The criminal court acquitted him, but the families of the two victims successfully filed civil suits against him.
Let’s consider some decisions by arbitrators and courts on what double jeopardy is and what it is not. In the case of Nemagovhani v Multi-Projects (2009), the employee was dismissed for insubordination.

Apparently, the employee had earlier been given a final written warning for the very same act of insubordination. The employer justified this double punishment on grounds that “management had decided that he was going to be fired”.
Unsurprisingly, the employer lost the case.

In a related case of Alexander v County Fair Foods (Private) Limited (2000), Alexander was slapped with a suspension and a final written warning for allegedly assaulting a fellow employee. The employer later decided to dismiss him for the same offence.

The Commission for Conciliation Mediation and Arbitration (CCMA) ruled that Alexander had been exposed to double jeopardy.

What we learn from these two cases is that employers will need to come up with extremely good reasons in order to persuade the justice system that their decisions to have second hearings for the same offence are justified.

The court held in Telkom SA v CCMA and & Others that once the chairman of a disciplinary hearing makes a decision on penalty, the matter is finalised and the chairman becomes functus officio (no longer in office).

It is, therefore, incompetent for the employer to change a lesser penalty to one of dismissal.

The case of Walsh v Delta Motor Corporation (Private) Limited illustrates what double jeopardy is not. Here, an employee assaulted and severely injured another. The employee’s supervisor counselled the offender and struck an agreement with him to meet the victim’s medical expenses. The supervisor then requested the matter be closed.

The company’s industrial relations department took up the matter resulting in the employee’s dismissal. The court ruled double jeopardy did not apply as the employer merely complied with its disciplinary code and procedure, that is, to hold a disciplinary hearing. The decision to dismiss the employee was allowed to stand.Similarly, in Wium v Zondi and Others (2002), an employee lied he had no previous convictions when he applied for the position of deputy principal and later, principal of a primary school. One member of the school’s governing body who knew the employee’s previous conviction for theft raised alarm.

A disciplinary hearing was held. The presiding officer found the employee guilty and recommended he be given a final written warning.

This recommendation was made to the superintendent-general (SG) of the school. The SG rejected the penalty and imposed a dismissal.

The court decided double jeopardy was not applicable here because the initial disciplinary hearing only had the duty to recommend, not impose a penalty.

Having regard to the above, it is crucial employers handle issues of discipline right the first time, as the consequences of incorrect and sloppy decisions can be costly.

Seeking objective and legally sound advice at the initial hearing stages will obviate the need for “a second bite of the cherry”, which is fraught with risk.

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