Double Jeopardy in the Workplace

Double Jeopardy in the Workplace: When a Second Dismissal Crosses the Line

Labour Appeal Court reinforces limits on repeated disciplinary action

The recent decision of the Labour Appeal Court (LAC) once again highlights the principle of double jeopardy in employment law — and the risks for employers who attempt to discipline or dismiss an employee twice for the same offence.

In SAMWU obo Malatsi v South African Local Government Bargaining Council and Others (JA 64/23) [2025] ZALAC 40, the LAC considered whether an employer’s second dismissal of an employee — after a prior reinstatement by an arbitrator — was fair or amounted to double jeopardy.

The employee had originally been dismissed in 2013 for alleged dishonesty and, alternatively, fraud, after trying to access the employer’s bank account without authorisation. When he challenged the dismissal at the CCMA, the arbitrator found that there was no evidence of fraud or dishonesty. However, the employee was found negligent in relation to password security and reinstated following a four-month unpaid suspension.

The employer’s review application failed, and the reinstatement took effect. Shortly after the employee returned to work, the employer initiated a second disciplinary process—again rooted in the same underlying facts. This time, the employee was accused of gross dishonesty and breach of IT policies for allegedly sharing his password, which allowed others to use his account for improper activities. The second disciplinary hearing resulted in another dismissal, which a subsequent arbitration upheld.

The Double Jeopardy Argument

The employee sought to overturn the second arbitration award, arguing that he had already been sanctioned for the same conduct and that the second dismissal constituted double jeopardy.

The arbitrator, and later the Labour Court, found otherwise — holding that the second set of charges, although related to the same events, were “new” and sufficiently distinct from those previously adjudicated. The Labour Court concluded that fairness allowed a second disciplinary process.

The Labour Appeal Court’s Decision

On appeal, the LAC disagreed. The Court confirmed that fairness remains the key test in deciding whether a second disciplinary process may proceed. Although previous case law has recognised limited circumstances where a repeat disciplinary process might be justified — such as where new evidence comes to light or where the first process was fundamentally flawed — this case was different.

Here, a final and binding arbitration award had already dealt with the matter. The employee had been disciplined and reinstated subject to suspension. By pursuing a second dismissal based on the same facts, the employer effectively disregarded the binding nature of that award.

The LAC held that both the second disciplinary hearing and the subsequent dismissal were unfair. The arbitrator’s decision to uphold the second dismissal constituted a material error, as it ignored the legal finality of the prior arbitration.

Key Lessons for Employers

No second bite at the cherry: Once a final and binding arbitration award has sanctioned an employee for specific misconduct, employers cannot reopen the same facts for further disciplinary action.
Limited exceptions: A second disciplinary process is only justified in exceptional cases, such as where new information emerges or where the first process was genuinely defective.
Respect arbitration finality: Ignoring or undermining an arbitration award can lead to findings of procedural and substantive unfairness, as well as reinstatement orders.

This case serves as a timely reminder that while employers must enforce discipline, they must also respect the principles of fairness and finality. Once an arbitration award resolves a matter, attempting to discipline or dismiss an employee again on the same facts may expose the organisation to unnecessary legal risk — and, as in this case, reinstatement orders.

Cases like this prove that fair procedure isn’t just good practice — it’s legal protection.
📞 Partner with HR Consult to strengthen your disciplinary and arbitration processes.

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Adapted by HR Consult, specialists in South African labour and employment law compliance.

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