Much has been written on this subject, which still seems to contain grey areas or misunderstood conceptions in the minds of employers. Double jeopardy or double punishment applies in instances where a particular sanction has been enforced, and then subsequently
a further or harsher sanction is enforced for that same act of misconduct.

For example, the finding of the chairperson of a disciplinary hearing may be that the respondent is to be sanctioned with a final written warning, and then the employer dismisses for that same incident. In Hospersa obo Lokoeng / Provincial Dept thinkof Health Limpopo, the applicant was dismissed for being absent without leave. He had previously been given a number of warnings for poor timekeeping. The applicant stated that his dismissal was unfair because he had already been punished for the offense in question.

The applicant acknowledged that he had been absent without leave in the period mentioned, and he further acknowledged that he was aware of the company rule in this regard. The question to be decided was whether the respondent had punished the applicant twice for the same offense. There was no evidence led to show that there was any incidents of absence apart from those for which the employee had been issued warnings.

The applicant was dismissed through the disciplinary hearing, after having been found guilty of unauthorised absence from work. On various occasions of absence, the applicant had been counselled and had been given warnings, up to and including a final written warning, for all the different incidents of absenteeism without authority. He had previously received sanctions of unpaid leave against him, until the incident where he incurred a final written warning.

No formal proceedings had been followed previously, and all the warnings issued and sanctions issued in the past were given solely at management’s discretion without any formal hearings. After having been given a final written warning, he was then afterwards officially charged and notified of a disciplinary hearing, where he was found guilty (a second time of all the previous offences) and was dismissed.

The applicant acknowledged that he had been charged, found guilty and dismissed for absenteeism on the same dates that he already been given the previous warnings on – including the incident on which he had received a final written warning. The applicant acknowledged that on the first incidents, he was given counselling, he had then received two further written warnings for two different incidents of unauthorised absenteeism, and he had then been given a final written warning for a further incident of a.w.o.l, and a second final written warning for a further incident of a.w.o.l.

The respondent then held a final and formal disciplinary hearing, on which all these previous issues were addressed, and the applicant was dismissed for these previous issues which had already been heard and sanctions applied. At the arbitration, the applicant’s representative stated that the dismissal was unfair, in that the respondent had charged the applicant a second time for the various incidents. Alleging (quite correctly) also that the onus was on the respondent to prove that the dismissal was fair, and secondly that the respondent had failed to prove that the dismissal was fair, the applicant was simply not going to lead any evidence against the respondent because the respondent had failed to discharge his onus regarding the burden of proof.

Quite obviously, the employee cannot be dismissed for previous incidents of misconduct on which he has already been subjected to a disciplinary hearing and a fair sanction has been applied. In this particular case the respondent was awarded reinstatement, payment of back-pay of all salary and benefits that he had forfeited from the date of dismissal, and the award was to be implemented within 30 days of the date of the award.