Worklaw Discussion ForumDiscussion Topic:
Reviewing a sanction from a disciplinary hearing. When can you hold a second disciplinary enquiry? - J Mabena
Worklaw Response:The LAC held in Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC) that an employer is entitled to hold a second disciplinary enquiry 'if it would be fair to do so'. When would this be fair? In Toyota S.A. Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 317/10, D276/10)  ZALCD 7 (6 June 2012) it was held that the holding of a fresh enquiry, in the circumstances of that case, was not procedurally unfair. It held that it would be fair for an employer to conduct a second enquiry where a line manager, without authorisation, deviates from the ordinary sanction and deprives the employer of the opportunity to act consistently.
But these cases should not be seen as a blank cheque giving the employer the right to rehear every case in which it doesn't like the outcome. Where there has been compliance with the company's disciplinary code and the first enquiry has adequately canvassed the facts involved, it will probably be unfair to hold a second enquiry.
We think an employer should only consider a rehearing -
(i) where the first enquiry / procedure was not in compliance with the company's disciplinary code;
(ii) where, despite bona fide investigations, new and material information which was not in the employer's possession at the time of the first enquiry has come to light and which if proved to be true, would materially alter the outcome.