Summary
The Labour Appeal Court has confirmed that, while employers are not categorically barred from instituting disciplinary action more than once arising from the same factual matrix, they may not do so where a binding arbitration award has already imposed a sanction for the misconduct in question. The Court held that the dismissal of an employee who had already been sanctioned by way of unpaid suspension amounted to unfair “double jeopardy”.
Key facts
The employee, an accountant employed by a municipality, was dismissed after attempts were made from his work computer to access the municipality’s bank account without authorisation. At the first arbitration, the arbitrator accepted that password-sharing was customary in the department and that it could not be established that the employee himself had attempted the access. His dismissal was found to be substantively unfair.
Although reinstatement was ordered, its retrospectivity was limited, effectively imposing a four-month period of unpaid suspension as a sanction for the employee’s failure to safeguard his computer password. The award was upheld on review and became final and binding.
After reinstating the employee, the municipality initiated fresh disciplinary proceedings arising from the same factual circumstances, charging him with gross dishonesty and breach of its IT policy in that he failed to safeguard his password – the very issue which the arbitration had sanctioned him for in the first arbitration by refusing backpay with this reinstatement. He was dismissed following a disciplinary hearing.
He challenged his dismissal before the CCMA, where the dismissal was found to be fair, and before the Labour Court, which dismissed the review application, find that there was no basis for a claim of double jeopardy.
Issues before the Labour Appeal Court
The central issue was whether it was fair for the employer to dismiss the employee a second time for misconduct arising from the same factual matrix, where a binding arbitration award had already imposed a sanction for that conduct.
The Court’s findings
The Labour Appeal Court reaffirmed that in labour law, in exceptional circumstances, a second disciplinary enquiry may be fair.
However, in this case the second disciplinary was not fair. The first arbitration award had finally and bindingly imposed a sanction for the employee’s password-related misconduct. By charging the employee again and dismissing him for the same misconduct, the municipality disregarded the binding effect of that award.
The Court held that the second arbitrator’s failure to give effect to the first award constituted a material irregularity. The second arbitration award was set aside and the employee was reinstated with retrospective effect.
