Employment law update – Double jeopardy

July 1st, 2018

Nadine Mather BA LLB (cum laude) (Rhodes) is an attorney at Bowman Gilfillan in Johannesburg.

In Mahlakoane v South African Revenue Service [2018] 4 BLLR 337 (LAC), the employee, while living with her husband and two minor children, applied for and received child support grants because she was unemployed. Six years later, the employee was employed by the South African Revenue Service (Sars) and consequently was no longer entitled to receive the grants, this notwithstanding, the employee continued to accept the grants for a further two years in breach of the Social Assistance Act 59 of 1992. When Sars discovered this, the employee was charged with fraud.

At her disciplinary hearing, the employee’s defence was that she had informed the South African Social Security Agency (SASSA) that she no longer qualified for the grants, but nothing resulted from it. In support of her defence, she produced two letters purportedly from SASSA, one in respect of each child, informing her that the grants had ceased. The chairperson did not find the employee guilty of fraud, but only of wrongfully receiving the grants, and issued her with a final written warning.

Two years later, the employee’s husband, who had since separated from the employee, informed Sars that the dates on the SASSA letters, on which the employee had relied during her disciplinary hearing, had been forged. The employee was again charged with fraud, found guilty and dismissed. Aggrieved by the outcome, the employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA Commissioner found that the employee was unfairly dismissed on the basis that she had been subjected to two disciplinary hearings on charges relating to the same offence and this constituted ‘double jeopardy’. Consequently, the commissioner reinstated the employee with full retrospective effect. On review, the Labour Court (LC) held that the commissioner had erred by conflating the two sets of charges and that the double jeopardy principle thus did not apply. The LC also rejected the commissioner’s finding that the letters were probably genuine and set aside the award, finding that the dismissal was substantively fair.

On appeal, there were two issues that the Labour Appeal Court was required to consider –

  • whether the employee had been subjected to ‘double jeopardy’; and
  • whether the dismissal was fair.

The court held that the principle of double jeopardy entails that an employee cannot be charged again with the same misconduct that they were found either guilty or not guilty of. There are, however, exceptions to this rule. The paramount consideration is fairness to both sides. In this case, the court found that the charges of misconduct did not arise from the same incident, so the double jeopardy principle did not apply. The charges in the first hearing did not relate to the authenticity of the letters or the dates of the letters. The charges in the second hearing centered around the falsification of the dates on the letters. The commissioner had thus erred by finding that the double jeopardy principle applied.

Turning to whether the charges in the second hearing had been proved, the court held that, despicable as the employee’s husband’s act of disloyalty towards his estranged wife might seem, his version was supported by the facts and circumstances. The employee’s claim that she had reported to SASSA that she no longer qualified for the grants was not apparent from the letters, which indicated that SASSA had discovered that she had become employed. The evidence indicated that the grant had ceased when the Special Investigation Unit had completed an investigation into a number of such cases. The probabilities were overwhelming that the date on the letters had been altered and the police stamps on the copies of the letters were falsifications. Accordingly, the court held that the commissioner’s finding that the charges had not been proved was not a conclusion that a reasonable decision-maker would have come to. Furthermore, that the employee had pursued an appeal in the circumstances favoured a costs order against her.

The appeal was accordingly dismissed with costs.

Strike in retaliation against employer

In Borbet South Africa (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others [2018] 4 BLLR 348 (LC), the company, together with 13 other employers, was party to a demarcation process. The demarcation process involved a decision as to whether the company and other employers should remain in the Metal and Engineering Industry Bargaining Council or be demarcated to fall under the Motor Industry Bargaining Council. The employers supported the demarcation process. NUMSA opposed the demarcation process, as it was of the view that it would be detrimental to their members’ interests.

Amidst the demarcation process,
NUMSA presented the company with a set of demands, referred a mutual interest dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and, after conciliation at the CCMA, issued the company with a strike notice. An interim order was issued prohibiting a strike over the demands concerned. On the return date, the company acknowledged that our courts are slow to intervene in collective bargaining and that NUMSA had complied with the procedural strike provisions required in the Labour Relations Act 66 of 1995 (the LRA). However, the company argued that the NUMSA’s demands and the strike were acts of retaliation against the company for its involvement in the demarcation process. NUMSA denied that there was any connection between the proposed strike and the demarcation process.

Having examined correspondence between the parties, the court found that the demands were contrived to place pressure on the company and formed part of a ‘counter-campaign’ against the company for its part in the demarcation process. This conclusion was reinforced by the following –

  • NUMSA’s admission that the demands were compiled without any consultation with its members;
  • NUMSA’s refusal to engage with the company during conciliation; and
  • NUMSA’s failure to explain why the company was singled out among 13 employers involved in the demarcation process.

Since the demarcation proceedings were nearing completion, it was inconceivable why NUMSA could not await the outcome and only then consider further options.

Having found that the demands by NUMSA were contrived as an act of retaliation against the company, the next question the court was required to determine was whether the strike would be protected. The court held that since the true dispute was over that issue, the strike could not be protected because it had not been properly referred for conciliation. Furthermore, if the object of the strike was for purposes of compelling the company to withdraw from the demarcation process, it would have infringed the company’s right not to be discriminated against for exercising its rights under the LRA. The strike would have also contravened s 65 of the LRA as it was a matter that could be referred to arbitration.

In the circumstances, the strike was declared to be unprotected.

This article was first published in De Rebus in 2018 (July) DR 48.