Short notes on: DOUBLE JEOPARDY - WHEN WILL COURTS DISREGARD THIS RULE. Introduction

Size: px

Start display at page:

Download "Short notes on: DOUBLE JEOPARDY - WHEN WILL COURTS DISREGARD THIS RULE. Introduction"

Rudolph Morrison
5 years ago
Views:

1 Short notes on: DOUBLE JEOPARDY - WHEN WILL COURTS DISREGARD THIS RULE Introduction It is trite that in criminal proceedings a person cannot be tried for the same crime twice, once that person has been acquitted by a competent Court of Law. It has generally been accepted that Employees cannot be subjected to more than one disciplinary enquiry for the same offence, once the Employee has already been sanctioned for it. 1 What this practically would entail is that an Employer would not be allowed to sanction an Employee when the said Employee was acquitted of the alleged misconduct by the Presiding Officer at the disciplinary hearing. 2 This would further entail that an Employer would be without any recourse when a Presiding Officer decided to issue a Final Written Warning to an Employee that was found guilty of being dishonest. In these instances summary dismissal would have been the more appropriate sanction. Would this also imply that an Employer will be prohibited from disciplining an Employee? Especially when certain information came to the Employer s attention after the said Employee was acquitted of any wrong-doing at the disciplinary hearing? South African Courts have in recent times excused Employer s contraventions of the double jeopardy - rule. The Courts will in unique circumstances, disregard the contravention of the said rule. The Labour Appeal Court condoned the contravention of the double jeopardy - rule in BMW (SA) (Pty) Ltd v Van der Walt (21) ILJ 113 (LAC).

2 BMW (SA) Pty Ltd v Van der Walt 4 Mr Van der Walt (hereinafter referred to as the Employee ) had removed machinery that would have been scrapped from his Employer s premises. Employee s plan was to sell the scrap machinery and he was subsequently found to be guilty of misrepresentation and was issued with a Final Written Warning. Upon further investigation by the Employer it was found that the Employee s true intention was to repair the scrap machinery and to sell it for his own gain. The Employee was charged with fraud. At the disciplinary hearing the Employee was found guilty of committing fraud and subsequently dismissed by his Employer. The Labour Appeal Court was divided on the issue whether the circumstances mentioned above, could justify the Employer from deviating from the double jeopardy -rule. One of the Judges found that: the double- jeopardy principle was too important to sacrifice on the altar of the general requirement of fairness. 5 The two remaining Judges disagreed and held that: in the employment context, fairness to both parties is paramount. 6 The circumstances necessitated the Employer from deviating from the double jeopardy - rule. The Employee was found guilty of committing fraud and that misconduct warranted dismissal. The dismissal of the Employee was therefore declared fair. 7 The Labour Appeal Court had the opportunity to re-evaluate the decision taken in BMW (SA) (Pty) Ltd v Van der Walt, 8 when Branford v Metrorail Services (Durban) 9 was heard. Branford v Metrorail Services (Durban) Metrorail Services (hereinafter referred to as Metrorail ) dismissed the Employee for fraud. The Employee had stolen Metrorail s petty cash on numerous occasions. The Employee was disciplined by his Line Manager and issued with a warning prior to him attending the disciplinary hearing that led to his dismissal (21) ILJ 113 (LAC) (21) ILJ 113 (LAC) (24) ILJ 2269 (LAC). 10

3 The CCMA Commissioner (that heard the Arbitration) concluded that the Employee was subjected to two disciplinary inquiries, i.e. the warning issued to him by his Line Manager and secondly the disciplinary hearing, where after he was subsequently dismissed. The Employee was thus disciplined twice for the same offence. The double jeopardy - rule was therefore contravened by Metrorail without any justification for it. The dismissal was declared to be unfair. 11 The Labour Appeal Court disagreed with the Commissioner s findings by declaring that the Employee was not subjected to two disciplinary inquiries. The warning issued by the Line Manager was not considered to be a formal disciplinary inquiry. The Court held that the disciplinary hearing was the first inquiry. The Court was once again divided as to whether the rule was contravened. The majority of the Court ruled that the Commissioner had blundered searching for extraordinary conditions. The Commissioner had further failed to take cognisance of the element of fairness. The double jeopardy - rule was therefore not contravened by Metrorail. 12 Both BMW and Metrorail raised a further question: When can an employee be said to have been subjected to a second hearing? The key considerations seem to be that the first hearing must in fact be a properly constituted and that the second charge that will be heard at the second disciplinary hearing, must relate to the same cause of action or misconduct. In Metrorail the majority voiced hesitation that the first hearing can be considered to be a properly constituted hearing. In BMW, the majority decided that the unearthing of new facts transformed the character of the charge into something dissimilar and more severe. 13 The Labour Appeal Court delivered judgment in Winnie Mahlakoane v South African Revenue Service 14 on the 25 th of January The Court had to decide whether the double jeopardy - rule was contravened by the South African Revenue Service. The Appellant was also subjected to two disciplinary hearings by her Employer Workplace Law, 12th edition, John Grogan, pages Workplace Law, 12th edition, John Grogan, page Case number JA118/13, LAC (Johannesburg). Not reportable.

4 Winnie Mahlakoane v South African Revenue Service The Appellant, Winnie Mahlakoane, applied for child support grants in She was unemployed at the time and lived with her husband, Mr. Setshedi. Her application was approved in accordance with the requirements of the Social Assistance Act 59 of 1992(hereinafter referred to as The SAS Act ) 15 In 2006, the Appellant s situation improved, when she was employed by the South African Revenue Service (hereinafter referred to as SARS ). Accordingly, the Appellant was no longer entitled to receive child support grants. 16 Despite the Appellant s improved economic circumstances, the she continued to draw the child support grants in contravention of The SAS Act. SARS became aware of this in The Appellant was charged with fraud or alternatively breaching the disciplinary code of SARS. 17 The Appellant raised the defence (at her first disciplinary hearing that was held in 2008) that she had informed the South African Social Security Agency (hereinafter referred to as SASSA ) that she was employed and therefore did not qualify to receive the child support grants anymore. Initially, the Appellant did not receive any response from SASSA. To substantiate her defence, she submitted two letters (one letter per child), dated the 2 nd of October 2006, that she had allegedly received from SASSA informing her that the payment of the child support grants would cease. 18 The Presiding Officer (in light of the evidence submitted by the Appellant), did not find her guilty of fraud. He however found her guilty of continuing receiving the grants, which is a contravention in accordance with the disciplinary code of SARS. A final written warning was the recommended sanction, which was also accepted by SARS. The Appellant was subsequently issued with the said warning. 19 In 2010, Mr. Setshedi, informed SARS, that the two letters, that the Appellant, had submitted at her disciplinary hearing in 2008, were in fact forged and that he had assisted the Appellant with the forgery. SARS proceeded to charge the Appellant on various counts of misconduct, including fraud 15 This later revoked and replaced by The Social Assistance Act, 13 of Paragraph 3, Case number JA118/13, LAC (Johannesburg). Not reportable. 17 Paragraph 4, Case number JA118/13, LAC (Johannesburg). Not reportable. 18 Paragraph 5, Case number JA118/13, LAC (Johannesburg). Not reportable. 19 Paragraph 6, Case number JA118/13, LAC (Johannesburg). Not reportable.

5 and forgery. The Appellant was found guilty as charged. She was dismissed on the 15 th of September The Appellant referred an unfair dismissal dispute to the CCMA. The Commissioner issued an Arbitration Award whereby her dismissal was declared unfair. The Commissioner indicated that the Appellant s second disciplinary hearing was unfair seeing as the charges were exactly the same as what was previously instituted against her in This then was double jeopardy and the subsequent dismissal was therefore declared unfair. SARS referred the matter for review to the Labour Court. 21 The Labour Court found that: the Commissioner s finding of double jeopardy had no support on the facts or in law and that the two sets of misconduct, i.e. those that the appellant was charged with in the first disciplinary hearing and those that she was charged with in the second disciplinary hearing, were clearly distinguishable from each other, despite some facts and role - players that they had in common; the Commissioner had conflated the two acts of misconduct into one; that the respondent was accordingly found to have been (fairly) entitled to subject the appellant to a second disciplinary hearing to deal with the new and different accusations they just received from the Appellant s ex-husband. 22 The Labour Court thus reviewed and set aside the Commissioner s Arbitration Award. It was held that the Appellant s dismissal was substantively fair. 23 Judge Coppin (on appeal from the Labour Court to the Labour Appeal Court) stated that: the principle of double jeopardy has, at its heart, fairness and this rule or principle simply entails that an employee cannot, generally, be charged again with the same misconduct that he or she was either found guilty or not guilty of. 24 The Judge further stated that there will be circumstances where contraventions of this rule will be condoned bearing in mind that it must be fair to both parties involved. 20 Paragraphs 7-8, Case number JA118/13, LAC (Johannesburg). Not reportable. 21 Paragraphs 9-11, Case number JA118/13, LAC (Johannesburg). Not reportable. 22 Paragraph 15, Case number JA118/13, LAC (Johannesburg). Not reportable. 23 Paragraph 19, Case number JA118/13, LAC (Johannesburg). Not reportable. 24 Paragraph 27, Case number JA118/13, LAC (Johannesburg). Not reportable.

6 Judge Coppin explicitly stated that the 2008 charges and the 2010 charges were not the same. The double jeopardy - rule was therefore not applicable. 25 Therefore, the Appellant s dismissal was justified and her appeal was dismissed with costs. 26 Conclusion Both Metrorail - and BMW - cases corroborate that the appropriate test in cases of assumed contravention of the double jeopardy - rule is fairness. However, neither judgment recommends which criteria may be relevant to use as a test for fairness in this context. 27 A critical prerequisite of the double jeopardy - rule is that the charges against the Employee in the second disciplinary hearing must be the identical to the charges in the first disciplinary hearing. This doesn t imply that the Employer can merely rewrite the charges in dissimilar form. The test is whether the charges relay to the same origin of misconduct (i.e. the same alleged misconduct). 28 The Labour Appeal Court confirmed that fairness to both parties is the paramount consideration as to decide whether the contravention of the double jeopardy - rule can be condoned or not. 29 At SchoemanLaw Inc., we can assist you to ensure that your disciplinary hearings are conducted in line with legislation and the latest Labour Appeal Court judgments. 25 Paragraph 28, Case number JA118/13, LAC (Johannesburg). Not reportable. 26 Paragraphs 48-49, Case number JA118/13, LAC (Johannesburg). Not reportable. 27 Workplace Law, 12th edition, John Grogan, page Workplace Law, 12th edition, John Grogan, page Winnie Mahlakoane v South African Revenue Service: Paragraph 27, Case number JA118/13, LAC (Johannesburg). Not reportable.

Short notes on: DOUBLE JEOPARDY - WHEN WILL COURTS DISREGARD THIS RULE. Introduction

Short notes on: DOUBLE JEOPARDY - WHEN WILL COURTS DISREGARD THIS RULE Introduction It is trite that in criminal proceedings a person cannot be tried for the same crime twice, once that person has been