It is trite that in criminal proceedings a person cannot be tried for the same crime twice, once that person has been acquitted by a competent Court of Law. It has generally been accepted that Employees cannot be subjected to more than one disciplinary enquiry for the same offence, once the Employee has already been sanctioned for it.

What this practically would entail is that an Employer would not be allowed to sanction an Employee when the said Employee was acquitted of the alleged misconduct by the Presiding Officer at the disciplinary hearing.

This would further entail that an Employer would be without any recourse when a Presiding Officer decided to issue a Final Written Warning to an Employee that was found guilty of being dishonest. In these instances summary dismissal would have been the more appropriate sanction.

Would this also imply that an Employer will be prohibited from disciplining an Employee? Especially when certain information came to the Employer’s attention after the said Employee was acquitted of any wrong-doing at the disciplinary hearing?

South African Courts have in recent times excused Employer’s contraventions of the ‘double jeopardy’- rule. The Courts will in unique circumstances, disregard the contravention of the said rule. The Labour Appeal Court condoned the contravention of the ‘double jeopardy’- rule in BMW (SA) (Pty) Ltd v Van der Walt.

Mr Van der Walt (hereinafter referred to as the ‘Employee’) had removed machinery that would have been scrapped from his Employer’s premises. Employee’s plan was to sell the scrap machinery and he was subsequently found to be guilty of misrepresentation and was issued with a Final Written Warning. Upon further investigation by the Employer it was found that the Employee’s true intention was to repair the scrap machinery and to sell it for his own gain.