Worklaw Discussion Forum

Discussion 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) [2012] 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.

Chillies Mfeka
Worklaw's comment above doesn't mention the latest LAC judgment of Mahlakoane v South African Revenue Service  covered in the February 2018 newsflash. This confirmed the approach taken in earlier cases that an employer can hold a second hearing when it is fair to do so - with fairness to both sides taken into account.

posted on: Wednesday, February 20, 2018 - 11:22:13 AM

Employers should learn to accept the outcome of hearings that dont always go their way, and not always look for ways to rehear the case to get a better result

posted on: Friday, February 23, 2018 - 4:04:02 PM

The recent LAC case of Mahlakoane v SARS shows that double jeopardy doesn't apply if new evidence comes up at a later stage.

posted on: Thursday, June 28, 2018 - 10:53:32 AM
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