Labour Law News…January 2016

Double jeopardy: Can an employer hold a second enquiry?

What if an employer doesn’t agree with the outcome of an enquiry – or the sanction which the chairperson imposes? The second enquiry could be unfair on the basis of the double jeopardy rule.

But the Labour Court has found that there can be exceptions to the rule. It found in Toyota v CCMA[1] as follows –

“The established law about an employer being disallowed from interfering in

the outcome of a disciplinary enquiry 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 labour relations. This principle is worthy of preservation.”[2]

The 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 could in turn could cause inconsistencies in the employer’s application of discipline.

This does not give employers the freedom to hold a second enquiry if it does not like the outcome of the first one. Nor can it replace the sanction which a harsher one unless the Chairman’s decision was only a recommendation.

TIP: Only consider holding a second enquiry in exceptional circumstances – when the Chairman of the first enquiry committed a serious irregularity by failing to follow the right procedures or apply the disciplinary Code properly.

[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)

[2] Worklaw Newsletter January 2016

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