Reach Summit (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2230/22) [2026] ZALCJHB 270, delivered on 25 August 2026.

An employee, Cindi Alani Samso, was employed as a project manager responsible for recruitment and placement. Problems arose with two recruitment projects, including delays, missed deadlines and an alleged failure to achieve the required recruitment targets.

The employer initially notified the employee that she would face disciplinary action for poor performance, negligence and inefficiency. A few days later, however, the employer withdrew the disciplinary notice and instead issued her with a final written warning for negligence, carelessness and failure to follow company procedures in relation to the recruitment projects.

The matter did not end there. The following day the employee was suspended. According to the employer, it was only at this stage that it discovered the true extent of the problem: the employee had recruited only 94 of the required 200 learners. She was subsequently charged with gross negligence and bringing the company’s name into disrepute. Following a disciplinary hearing, she was dismissed.

The employee challenged her dismissal at the CCMA.

The commissioner found that the employer had effectively disciplined the employee twice for the same conduct. Both the final written warning and the later dismissal related to the same recruitment projects, and the employer had not established that some new act of misconduct or missed deadline had occurred between the warning and the subsequent charges. The dismissal was therefore found to be substantively unfair on the basis of double jeopardy, and the employee was awarded six months’ remuneration amounting to R180 000.

The employer took the award on review.

There was, however, an important development while the litigation was continuing. In a separate review application concerning the fairness of the warning, Daniels J set the warning aside, declaring it an unfair labour practice. This created an unusual legal problem.

Ordinarily, double jeopardy means that an employee should not be disciplined or sanctioned twice for the same offence. But for double jeopardy to arise, there must first have been a valid earlier disciplinary action or sanction.

Once the final written warning was set aside, it was regarded as invalid from the outset (void ab initio). In other words, the first sanction on which the commissioner had based the double-jeopardy finding legally ceased to exist. Without a valid first sanction, there could no longer be a second “jeopardy”.

The Labour Court did not criticise the commissioner for reaching the conclusion he had reached. On the evidence available at the arbitration, the Court accepted that the commissioner’s finding had been one that a reasonable decision-maker could have reached. The problem arose because the later judgment had fundamentally changed the legal position.

The Court therefore set the arbitration award aside.

However, it refused the employer’s request simply to substitute the award with a finding that the dismissal was fair. The commissioner had decided the case solely on double jeopardy and had never determined the underlying question: Was the employee’s failure to achieve the recruitment targets, and her alleged failure to communicate that problem, sufficiently serious negligence to justify dismissal?

That question still had to be determined on the evidence. The Labour Court therefore sent the matter back to the CCMA for a hearing de novo before a different commissioner.

Written by Nicolene Erasmus, Director, Labour Guide