Double jeopardy remains one of the more confusing areas of workplace discipline, and many employers are unsure when further disciplinary action is allowed — and when it becomes unfair. Understanding this principle is important, as getting it wrong can result in unfair dismissal claims, reinstatement orders, or costly compensation awards.
What is Double Jeopardy?
In a workplace context, double jeopardy occurs when an employee is disciplined more than once for the same incident of misconduct.
This can happen when:
- An employee receives a warning and is later dismissed for the same incident
- An employee is found not guilty and then charged again for the same offence
- An employer increases a sanction after it has already been imposed
- A second disciplinary hearing is held for the same misconduct
Generally, disciplining an employee twice for the same offence is considered procedurally unfair.
Case Example: Absenteeism and Double Jeopardy
In Hospersa obo Lokoeng v Provincial Department of Health Limpopo, an employee was dismissed for being absent without leave.
However, prior to dismissal, the employee had already received counselling and multiple warnings for the same absenteeism incidents. Later, the employer held a formal disciplinary hearing and dismissed the employee based on those same incidents.
The arbitrator found that the employer had effectively disciplined the employee twice for the same misconduct. As a result, the dismissal was ruled unfair, and the employee was reinstated with back pay.
This case highlights the risk employers face when they revisit misconduct that has already been addressed.
Why Double Jeopardy Happens
Double jeopardy often arises when:
- Trust between employer and employee has broken down
- The employee is viewed as problematic
- There is workplace conflict or personality clashes
- Management believes dismissal is the only solution
Even in these situations, employers must still follow fair procedures. Decisions based purely on frustration or personal views may lead to adverse rulings.
How Fairness is Determined
When assessing whether double jeopardy has occurred, decision-makers consider:
- The Labour Relations Act
- Case law and principles of fairness
- The facts of the specific situation
- How the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining council is likely to view the matter
Because these factors can be complex, employers should proceed carefully before taking further action.
Can an Employer Hold a Second Disciplinary Hearing?
As a general rule, a second disciplinary hearing for the same incident is not permitted.
However, in limited circumstances, a second hearing may be justified if:
- New evidence becomes available
- The evidence is relevant to the original misconduct
- The new information is significant enough to justify revisiting the matter
Even in these cases, employers must act cautiously and ensure fairness throughout the process.
Case Example: Second Hearing Not Allowed
In Rakgolela v Trade Centre, an employee was dismissed for misusing a company cellphone. After appealing, the dismissal was replaced with a final written warning.
The employer later charged the employee again for the same incident and added a dishonesty charge. However, the dishonesty had already been considered during the appeal.
The CCMA found that the employer had disciplined the employee twice for the same misconduct and awarded 12 months’ compensation to the employee.
Can Employers Change a Sanction?
Double jeopardy may also arise when an employer changes a sanction after it has already been issued.
In Solidarity obo Van Rensburg v Rustenburg Base Metal Refineries (Pty) Ltd, an employee received a final written warning following a disciplinary hearing.
Management later decided the sanction was too lenient and appointed a new chairperson, who then dismissed the employee.
The matter focused on whether the employer was entitled to review and change the sanction. The decision highlighted that employers cannot simply override disciplinary outcomes unless:
- Their disciplinary code allows it; and
- It is fair in the circumstances
This case demonstrates that employers must follow their own disciplinary procedures and ensure fairness before altering sanctions.
Is It Double Jeopardy to Issue a Warning and Deduct Pay?
Employers often ask whether issuing a warning and not paying an employee for unauthorised absence amounts to double jeopardy.
In most cases, it does not.
If an employee does not report for duty without valid reason, the employer is not required to pay the employee for time not worked. This is not considered punishment — it is simply payment for work actually performed.
This principle is supported by the Basic Conditions of Employment Act, which regulates remuneration and deductions.
Where an employee is absent without permission:
- The employer may treat the time as unpaid leave
- The employer may still issue a warning for misconduct
Because the unpaid period relates to time not worked, and the warning relates to misconduct, this is not considered double punishment.
Key Takeaways for Employers
To avoid double jeopardy risks, employers should:
✔ Ensure misconduct is properly investigated before imposing a sanction
✔ Avoid reopening cases without valid reasons
✔ Follow disciplinary procedures consistently
✔ Avoid changing sanctions after they have been imposed
✔ Seek advice where unsure
Double jeopardy is ultimately about fairness. Once an employee has been disciplined for misconduct, employers should be cautious about taking further action for the same incident.
Incorrect handling of disciplinary matters can result in:
- Reinstatement of employees
- Compensation awards
- Legal and reputational risks
Seeking professional labour law guidance before taking further disciplinary action can help employers manage situations fairly and avoid costly mistakes.
For questions or advise, please contact the Cofesa national helpline:
(t): 011 679 4373
(c): 082 888 9516
(e): helpline@cofesa.co.za
Disclaimer: The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Readers are advised to always consult with a Labour Law Practitioner before acting on the information. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.