A Star article has reported that the SA Bureau of Standards (SABS) dismissed Constant Pretorius on 23 October. He was reportedly dismissed for the illegal sale of crash test bodies after allegedly giving a crash test body to a friend in exchange for a go-cart sponsorship. But it appears from the report that he had already been given a 12-month final written warning for this very offence the previous year. The SABS, after issuing the final warning, suspended Pretorius pending further investigation. By the time of his dismissal, Pretorius had been on suspension for 17 months on full pay.
According to the report, Ben Van der Walt, legal advisor to the trade union SAPTU, stated that further investigations had shown up no new evidence against Pretorius. This suggests that the protracted suspension on full pay was not cost effective and begs the question as to what grounds SABS had to convert the final warning given to Pretorius into a dismissal. Van der Walt is reported to have claimed possession of a written instruction by SABS to its HR department to “dismiss Pretorius and ‘bear the consequences’”.
Readers need to understand that the SABS took a very unorthodox route of issuing a final warning, then suspending Pretorius on full pay for a protracted period and then to dismiss him without further evidence. It seems that the hierarchy must have had a very strong reason for wanting Pretorius out of the organisation if it was willing to go to the substantial cost of a 17 month paid suspension and to take the major legal risk of punishing its employee a second time without new evidence or without proof that a new offence had been committed.
It should be understood that the dismissal may well have been legally acceptable had Pretorius received a final warning for the illegal sale and thereafter committed another similar offence within the 12-month period during which the warning was valid. Then, had he been found guilty at a new disciplinary hearing, a dismissal for the second offence could have been within the bounds of the law.
Punishing an employee twice for the very same offence (i.e. the same incident of misconduct) is called ‘double jeopardy’ and is not acceptable in law, except perhaps in the exceptional circumstance where new evidence shows that the initial punishment was too mild.
The double jeopardy principle was followed in the case of Hendricks vs University of Cape Town (1998, 5 BALR 548). In that case Hendricks was brought to a first disciplinary hearing where he was demoted and given a final written warning. These penalties were imposed on Hendricks for drinking on duty and for failing to report a subordinate for possession of a firearm. At that same hearing Hendricks was found not guilty of theft.
Later Hendricks was brought to a second disciplinary hearing where he was dismissed for unauthorised possession of a university vehicle. The report is not clear as to whether this charge was in respect of the same incident where Hendricks had been cleared of theft at the first disciplinary hearing.
The CCMA found that Hendricks had effectively been disciplined twice for the same set of offences and thus declared the second penalty (the dismissal) to be unfair. Hendricks was reinstated with retrospective pay.
In OCGAWU obo Alexander vs County Fair Foods (Py) Ltd (2000 11 BALR1271) Alexander was fired by the employer for allegedly assaulting a fellow employee. He was dismissed despite the fact that, at his disciplinary hearing he had received only a suspension and a final warning.
The employer argued at the CCMA arbitration hearing that it had been obliged to overturn the milder penalties imposed at the disciplinary hearing because:
- The assault weapon used was a dangerous one
- In previous similar cases the culprits had been dismissed and the employer was required to apply the principle of consistency.
- The arbitrator rejected these arguments and found in favour of the employee because:
- The employee had pleaded guilty at the disciplinary hearing. Perhaps the arbitrator felt that this constituted a mitigating factor which absolved the employer from having to apply the principle of consistency.
- The employer’s policy did not allow the employer to overturn a previous penalty decision.
- The original sanction was not so inappropriate as to merit a review.
- The employers rigid policy of dismissal for all cases of assault was “objectionable”.
These earlier cases suggest that SABS will need to come up with extremely persuasive exceptional circumstances in order to persuade the CCMA that its apparent double jeopardy decision to fire Pretorius was justified. This is yet another case that illustrates the importance of seeking expert labour law advice rather than basing a dismissal decision on questionable motives.
To book for our May Cape Town seminar on DEFEATING THE DANGERS OF DISMISSAL 2013 go to: http://www.labourlawadvice.co.za/training For enquiries contact Ronni on email@example.com or 0845217492.
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting.
Contact: Tel (011) 888-7944 or 0828522973
E-mail address: firstname.lastname@example.org.
This article first appeared in The Star.