The defence of double jeopardy has its origins in criminal law and, in essence, provides that an accused person cannot be tried twice in respect of the same crime. Although it is a criminal law concept, employees facing disciplinary steps often raise it in the realm of labour law. Typically, this occurs in the situation where senior management decides to overturn a decision of a chairperson of a disciplinary enquiry not to dismiss an employee for misconduct. In the recent judgment of SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others the Labour Court (the “Court”) had to consider this issue in a different labour law context.
Factual background
Mr Malatsi (‘’employee’’) was employed by the Gert Sibande District Municipality (‘’employer’’) in its finance department. The employer was alerted by its bank of possible fraudulent activities and it commissioned a forensic investigation. This uncovered irregularities that exposed the employer to a potential loss of approximately ZAR9.7-million. The investigation found that, between 31 January to 23 February 2012, there were several attempts made from the employee’s computer to illicitly access monies held in the employer’s bank account.
The employer decided to discipline the employee and convened a disciplinary hearing to consider the charge that the employee had failed to conduct himself with honesty and integrity in that he attempted to access the employer’s bank accounts on 11 different...
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