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WHAT CONSTITUTES UNFAIR DOUBLE JEOPARDY?
Normally, once a disciplinary sanction has been handed down, it is unfair to impose a new, harsher sanction. What, if any, are the exceptions to this principle?The Labour Court confirmed the double jeopardy rule in Toyota v CCMA [1] as follows –
“The established law about an employer being disallowed from interfering in the outcome of a disciplinary inquiry where the chair has the power to make a final decision, which is the crucial issue in this appeal, has, as its aim, the protection of workers from arbitrary interference with discipline in a fair system of labor relations. This principle is worthy of preservation.”
However, it indicated that an exception may apply if the Chairperson failed to follow or apply the employer’s procedures or policies properly. This is because the failure could result in an irregular outcome which in turn could cause inconsistencies in the employer’s application of discipline.
This does not give employers the freedom to hold a second inquiry simply if it doesn’t like the outcome of the first one. Nor can it replace the sanction with a harsher one unless the Chairman’s decision was only a recommendation.
[1] Toyota S.A. Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 317/10, D276/10) [2012] ZALCD 7 (6 June 2012)
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