Abstract:
Does the doctrine of double jeopardy preclude employer intervention or the proverbial 'second bite at the cherry'? The rigid principles of double jeopardy does not form part of our labour law dispensation. The double jeopardy principle, however, is a necessary factor that is taken into account when deciding on the fairness of subjecting an employee to further disciplinary action. Even though the employer has the primary responsibility to discipline an employee, the employer may not deviate from disciplinary procedure and standards set by itself, without justification. The employer's powers must be curtailed to some extent in order to countervail the inequality inherent in the employment relationship. A wide approach in labour disputes should be adopted when deliberating the fairness of deviating in respect of the double jeopardy rule. A disciplinary code, which is a guideline, should not be a stumbling block for fairness to prevail. Deciding against employer intervention, solely based on the absence of a provision in an employer's disciplinary code expressly providing for the right to intervene, is an unwarranted narrow approach that leads to absurd results. The wider approach necessitates consideration of all the relevant facts and circumstances, not only the employer's disciplinary procedure, but including the effect of the employee's conduct on the trust relationship, public interest, the parity principle, reasonableness of the first sanction, appropriateness of the second sanction, reasonableness of the employer's decision to recharge the employee or reconsider the imposed sanction, prejudice to the parties, the time that has lapsed between the first and second disciplinary action and, essentially, the fairness to both the employee and employer. It is evident that an employer may only reconsider a decision of a properly constituted disciplinary tribunal when it is fair to do so. It will be fair to do so in exceptional circumstances. These circumstances will be extremely rare. Even where an employer reserved the right in its disciplinary procedure to 79 intervene with the decision of a disciplinary chairperson, the intervention must nevertheless, be justified. A second bite at the cherry is, therefore, possible. Identifying exceptional circumstances is not an easy task, in view of the test of fairness. Employers should therefore be conscientious in executing the important task to discipline.
