Double Jeopardy for Misconduct and Increase of Sanction at the Appeal Court: Unfair Labour Practice Revisited

Abstract

This article examines whether the employer can charge an employee twice for the same misconduct in labour law in view of Section 188(1)(a (b) of the Labour Relations Act 66 of 1995, (herein referred to as the LRA) which provides that the dismissal is unfair if the employer fails to prove that the reason for the dismissal is fair and was effected in accordance with a fair procedure. The article highlights that the principle of double jeopardy principle applies to labour law and enumerates how the employee can invoke it to justify that the conduct of the employer amounts to unfair labour practice. In discussing this principle, the article relies heavily on the judgements and pronouncements of the South African courts. The articles analyses the circumstances under which an employee can be charged twice for the same misconduct and considers whether it is appropriate and fair to increase the sanction on appeal or by a sanction imposed by the chairperson of the disciplinary hearing. The article also highlights situations where it is fair to the employer to hold second hearing. This is against the backdrop that fairness does not only apply to the employees alone but also to the employer in order for the hearing to be determined in a fair manner to both parties involved.

DOI: 10.5901/mjss.2013.v4n14p813