In the fast-paced world of employment law, the Double Jeopardy principle again took center stage in the matter of SAMWU obo AN Malatsi v Gert Sibande District Municipality.
The principle of Double Jeopardy prevents employers from subjecting employees to multiple punishments for the same offence, thereby ensuring fairness and protecting employees against undue harassment.
The abovementioned case is a crucial reminder for employers about their rights to institute disciplinary action, especially when new evidence emerges.
Let’s dive into the details of the case and explore its implications for employers.
The saga began in 2012 when the municipality faced financial loss due to ongoing fraudulent activities. A forensic investigation revealed that the employee attempted to access the municipality’s bank account without authorisation
The applicant was charged with dishonesty and fraud, which led to a dismissal. During the subsequent arbitration, the commissioner found the dismissal unfair due to the lack of evidence linking the applicant to the unauthorised access. The applicant was reinstated.
The municipality then filed a review application, which was also unsuccessful.
The municipality did not leave matter there. A fresh set of charges was brought against the employee, this time focusing on gross dishonesty and failure to adhere to the municipality’s IT policy for sharing his computer’s password with third parties.
The employee was again found guilty and dismissed, prompting another dispute in the Labour Court, centering on the critical legal question of whether the second set of charges constituted Double Jeopardy.
The court highlighted the employee’s admission that he breached the municipality’s IT policy by sharing his computer passwords during the previous arbitration.
The court considered the principle of Double Jeopardy by looking at various case precedents. It determined that new charges could be instituted if they arose from the same facts, where new evidence surfaced. In this instance, the court found that the employee’s admissions that he had shared his passwords constituted such new evidence. This justified the municipality’s decision to charge and dismiss him with new charges.
This case underscores an employer’s right to initiate a second disciplinary inquiry when significant new evidence emerges, potentially altering the outcome. However, it’s crucial to note that each case hinges on its own merits, and fairness remains the guiding principle.
Employers should always obtain expert legal advice when dealing with the Double Jeopardy rule, due to its technical nature.
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