In South African Municipal Workers Union obo Malatsi v South African Local Government Bargaining Council [2023] 6 BLLR 581 (LC) the employee alleged that the double jeopardy rule applied to a second hearing that was based on the same facts but for which he was charged with a different charge.
In this case, the employee was employed as an accountant and was dismissed following a forensic investigation where it had been discovered that his computer had been used to access the employer municipality’s bank account.
This was not permissible and had exposed the employer to a loss of approximately R 10 million. The employee was charged with failure to conduct himself with honesty and integrity in that he attempted to access the employer’s bank account on 11 occasions on eight different dates. The alternative charge was fraud. The employee was found guilty of misconduct and dismissed.
At the arbitration the employee argued that there was a culture of teamwork in which computers and passwords were generally shared and known. The arbitrator found that although the employee had acted irresponsibly it was possible that somebody else had used the computer and password and, therefore, reinstatement was ordered with back pay on the basis that dismissal had been too harsh in the circumstances. The municipality took the arbitrator’s decision on review to the Labour Court (LC) but the review application was dismissed. The employee was then reinstated, and the municipality convened another disciplinary hearing in respect of the employee. This second hearing related to the same incidents but this time the employee was charged with different charges. In this regard, there were two charges of misconduct. The first charge was gross dishonesty in that the employee acted dishonestly with the intention to deceive the municipality by sharing his own computer-created password with other employees, whereby his computer was used for fraudulent activities. The second charge was breach of the IT policy by sharing passwords with other employees, which resulted in the employee’s computer being used to do fraudulent activities. The employee was found guilty of the latter charge and was dismissed.
The employee referred an unfair dismissal dispute and argued that he was subject to double jeopardy. The arbitrator did not agree with this and found that the dismissal was fair on the basis that the conduct had caused a breakdown in the trust relationship.
On review the LC considered the principle of double jeopardy, which derived from criminal law. In essence it prevents a person from being tried twice for the same offence. This principle has also been adopted in the employment context whereby the general principle is that if the employer has imposed a sanction, the matter may not be re-opened to allow the employer to revisit the sanction and impose a harsher sanction. The LC, however, noted that this principle is subject to certain qualifications and reservations. In this regard, the courts have adopted an approach that if an employee has already been disciplined for an offence, it does not automatically mean that the employer is prohibited from holding another disciplinary hearing and imposing a harsher sanction. This depends on the circumstances and a second hearing may be permissible if it is in the interests of fairness or if new information has come to light that was not known during the first hearing. Therefore, each case must be determined on its own merits after considering the surrounding circumstances and determining what would be fair to both parties in the circumstances.
It was held that the double jeopardy rule did not apply to this case because in the first hearing there was no issue of sharing passwords. The second hearing had different charges, which related to the sharing of the passwords, which only came to light after the first hearing. Therefore, the first hearing did not relate to password-related misconduct. It was also found that there was no basis for the employee’s argument that his dismissal was unfair because the dismissal had been found to be unfair during the first arbitration as the second arbitration was a new hearing. Therefore, the application was dismissed.
As regards costs, it was held that the union should pay the costs as the claim had been opportunistic and the claim was based on a meritless interpretation of the double jeopardy rule.
Monique Jefferson
