In South African Medical Association Trade Union obo Rikhotso v MEC: Department of Health, Limpopo Province and Others [2023] 6 BLLR 575 (LC) an employee who was employed as a medical doctor resigned in the midst of facing disciplinary action. A disciplinary inquiry had been convened, which related to a charge that he had incited other employees to participate in an unprotected strike. The disciplinary inquiry commenced on 28 June 2022 and was concluded on 30 August 2022. While awaiting the outcome of the disciplinary inquiry the employee resigned and accepted a position at another hospital. On 1 November 2022, he resigned subject to his 30-day notice period. His employment would accordingly terminate at the end of the notice period on 30 November 2022. On 18 November 2022, the employee was advised that he had been found guilty of the charge against him and that the sanction was dismissal. On 25 November 2022, the employee appealed this decision. He was advised that the record of dismissal on the PERSAL system would be reversed pending the outcome of the appeal process. He was also informed that his removal from payroll would be revoked, and his notice period would be extended pending the outcome of the appeal. He was then instructed to continue rendering his services until the outcome of the appeal.
The appeal was unsuccessful, and the dismissal was upheld. The employee then approached the Labour Court (LC) on an urgent basis seeking an order that the extension of the notice period was unlawful. He also sought an order that the employer be directed to remove his name from its PERSAL system and to have the dismissal record expunged from his personnel file and for the records to instead reflect that the termination of his employment was by virtue of his resignation.
The LC found that it had jurisdiction to determine this dispute by virtue of s 77(3) of the Basic Conditions of Employment Act 75 of 1997 as the dispute concerned a contract of employment.
As regards the unilateral extension of the notice period by the employer, it was held that a resignation is a unilateral act that does not require acceptance by the employer. It is, therefore, not possible for an employer to unilaterally extend the notice period as the notice period is determined by the contract or statute and the employment relationship terminates at the end of the notice period. It was accordingly held that the extension of the notice period was unlawful as there was no legal basis for the employer to extend the notice period.
The LC then also considered whether there was any basis to grant an order that the employer must expunge the record of dismissal from its records and found that there was no basis in law for this. The basis of the employee’s argument in this regard was that although he was issued with the sanction of dismissal during his notice period this sanction did not stand at the time of the termination of his employment as he had appealed the sanction. It was held by the LC that it is a well-established principle that an employer may still summarily dismiss employees during their notice period. It was found that the employee had confused the existence of the dismissal with the implementation of the sanction. In this regard, the appeal against the sanction simply delayed the implementation of the sanction but it did not have the effect of expunging the sanction from the personnel records. It was found that during an appeal process the sanction remains on record, but the implementation is suspended until the outcome of the appeal and the sanction would only be expunged from the employee’s record if the appeal is in fact upheld. It was held that the employee was dismissed during the notice period and, therefore, the dismissal terminated the employment contract. It was found that the order that the employee was seeking was an attempt to conceal the dismissal. While the employer had unlawfully extended the contract until the appeal was concluded this did not change the fact that the employer had summarily dismissed the employee during the notice period.
The application was dismissed with costs on the basis that costs should follow the result, save for in exceptional circumstances.
In South African Municipal Workers Union obo Malatsi v South African Local Government Bargaining Council [2023] 6 BLLR 581 (LC) the employee alleged that the double jeopardy rule applied to a second hearing that was based on the same facts but for which he was charged with a different charge.
In this case, the employee was employed as an accountant and was dismissed following a forensic investigation where it had been discovered that his computer had been used to access the employer municipality’s bank account. This was not permissible and had exposed the employer to a loss of approximately R 10 million. The employee was charged with failure to conduct himself with honesty and integrity in that he attempted to access the employer’s bank account on 11 occasions on eight different dates. The alternative charge was fraud. The employee was found guilty of misconduct and dismissed.
At the arbitration the employee argued that there was a culture of teamwork in which computers and passwords were generally shared and known. The arbitrator found that although the employee had acted irresponsibly it was possible that somebody else had used the computer and password and, therefore, reinstatement was ordered with backpay on the basis that dismissal had been too harsh in the circumstances. The municipality took the arbitrator’s decision on review to the Labour Court (LC) but the review application was dismissed. The employee was then reinstated, and the municipality convened another disciplinary hearing in respect of the employee. This second hearing related to the same incidents but this time the employee was charged with different charges. In this regard, there were two charges of misconduct. The first charge was gross dishonesty in that the employee acted dishonestly with the intention to deceive the municipality by sharing his own computer-created password with other employees, whereby his computer was used for fraudulent activities. The second charge was breach of the IT policy by sharing passwords with other employees, which resulted in the employee’s computer being used to do fraudulent activities. The employee was found guilty of the latter charge and was dismissed.
The employee referred an unfair dismissal dispute and argued that he was subject to double jeopardy. The arbitrator did not agree with this and found that the dismissal was fair on the basis that the conduct had caused a breakdown in the trust relationship.
On review the LC considered the principle of double jeopardy, which derived from criminal law. In essence it prevents a person from being tried twice for the same offence. This principle has also been adopted in the employment context whereby the general principle is that if the employer has imposed a sanction, the matter may not be re-opened to allow the employer to revisit the sanction and impose a harsher sanction. The LC, however, noted that this principle is subject to certain qualifications and reservations. In this regard, the courts have adopted an approach that if an employee has already been disciplined for an offence, it does not automatically mean that the employer is prohibited from holding another disciplinary hearing and imposing a harsher sanction. This depends on the circumstances and a second hearing may be permissible if it is in the interests of fairness or if new information has come to light that was not known during the first hearing. Therefore, each case must be determined on its own merits after considering the surrounding circumstances and determining what would be fair to both parties in the circumstances.
It was held that the double jeopardy rule did not apply to this case because in the first hearing there was no issue of sharing passwords. The second hearing had different charges, which related to the sharing of the passwords, which only came to light after the first hearing. Therefore, the first hearing did not relate to password-related misconduct. It was also found that there was no basis for the employee’s argument that his dismissal was unfair because the dismissal had been found to be unfair during the first arbitration as the second arbitration was a new hearing. Therefore, the application was dismissed.
As regards costs, it was held that the union should pay the costs as the claim had been opportunistic and the claim was based on a meritless interpretation of the double jeopardy rule.
Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.
This article was first published in De Rebus in 2023 (Aug) DR 38.
