The Labour Appeal Court recently re-emphasised the approach and application of the so-called “double jeopardy rule” within the context of workplaces and employment, providing important guidance for employers and employees alike.
In SAMWU on behalf of Malatsi v South African Local Government Bargaining Council an employee, Malatsi, was accused of misconduct in connection with his handling of password protocols of the municipality he worked for, enabling unauthorized access to municipal bank accounts.
Brief facts
Malatsi was initially dismissed in 2013 for misconduct relating to unauthorized attempts to access the municipality’s bank account from the computer as his workstation. Matalsi took issued with his dismissal and referred the matter to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). At arbitration, his dismissal was found substantively unfair, with the arbitrator concluding that the misconduct levelled against him lacked sufficient proof. However, the arbitrator determined that Malatsi was guilty of a lesser charge—password negligence—and the arbitrator concluded that Malatsi should have been sanctioned to a suspension without pay for four months (We do not comment or address the powers of an arbitrator in this article).
Subsequently, the municipality instituted a second disciplinary hearing against Malatsi, relating to charges of gross dishonesty linked to sharing his password and foregoing IT procedure compliance. These facts only came to light during the first arbitration proceedings (i.e. that colleagues shared passwords). This second hearing resulted in a dismissal upheld by arbitration, which Malatsi unsuccessfully challenged in the Labour Court before appealing to the Labour Appeal Court.
The Labour Appeal Court’s Findings on Double Jeopardy and Different Charges
The Labour Appeal Court confirmed that the double jeopardy principle, drawn from criminal law and aimed at fairness, does not rigidly apply in the workplace context. In criminal law, the double jeopardy rule is a strict legal principle that prevents an accused person from being tried or punished more than once for the same contravention after a valid acquittal or conviction. Instead – within the employment context – fairness to both employer and employee is the guiding principle.
In Malatsi, the Court confirmed that an employer may initiate disciplinary proceedings against an employee on the same facts if the subsequent charges differ from the original ones.
In this case, although the charges stemmed from the same factual background (password misuse and IT security breaches), the charges in the second hearing were distinct from those in the first. The municipality initially charged Malatsi with failure of honesty and integrity, alternatively fraud, whereas the second charges related specifically to gross dishonesty and failure to comply with IT procedures by sharing passwords. The emergence of new information during the first arbitration justified the new charges in the second hearing.
Not a “Second Bite at the Cherry”
The Court emphasised this does not grant employers a license to institute a second disciplinary hearing against an employee on the same charges, in the event that it is not satisfied with the outcome of a first hearing. The charges must be genuinely different, reflecting new allegations or aspects not previously adjudicated. Employers must be vigilant in avoiding convening disciplinary hearings that essentially repeat or mirror prior charges, which would be unfair and constitute double jeopardy.
Consequences of charging on the same charges
If an employer charges an employee again on the same charges hoping for a different outcome, this will constitute an unfair practice. The principle of double jeopardy protects employees from being penalized twice for the same misconduct. In the current judgment, the Labour Appeal Court underscored that once a penalty has been imposed — such as unpaid suspension — the employer is bound by that outcome. Re-prosecuting the same misconduct with the aim of imposing a harsher sanction (e.g., dismissal) violates fairness and is subject to review and setting aside by the Court.
Summary
An employer can institute disciplinary proceedings again on the same facts if the charges differ substantially from previous charges.
- The employer cannot simply re-challenge the same charges with hopes of a different result—this is considered unfair and an abuse of the disciplinary process.
- The principle of fairness underpins the approach, balancing the rights and interests of both the employer and employee.
- Employers must exercise caution in calling second disciplinary hearings to ensure charges are distinct and based on new or different aspects discerned after the initial proceedings.
This judgment is a critical reminder for HR professionals, employers, and legal practitioners to carefully differentiate charges in successive disciplinary actions and to respect the finality of outcomes, thereby upholding procedural fairness and the integrity of employment disciplinary processes.