Double Jeopardy at the workplace-You can not be Convicted twice for the same crime?
‘Double jeopardy’ is a centuries-old legal doctrine that holds one should not be tried twice for the same offence. This doctrine is given legal expression in section 70(1)(m) of the 2013 Constitution of Zimbabwe which lays down that any person accused of an offence has the right, ‘not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits’( Haward Dean 13 March 2020)
Dr J Grogan’s book Workplace Law defines double jeopardy as follows:
“Where employees have been acquitted at a disciplinary enquiry, or the presiding officer has imposed a penalty/sanction less severe than dismissal, they cannot generally be subjected to a second enquiry on the same offence. Nor may management ignore the decision of a properly constituted disciplinary enquiry and substitute its own decision. A dismissal in such circumstances would invariably be unfair”.
As I understand it, the purpose behind this is to prevent a situation of judicial ‘harassment’ where a person found not guilty after a full, time-consuming and possibly expensive trial is subsequently brought back to court to repeat the process, incurring the further loss of time, money and peace of mind
Let’s consider some decisions by arbitrators and courts on what double jeopardy is and what it is not.
In the case of Nemagovhani v Multi-Projects (2009), the employee was dismissed for insubordination. Apparently, the employee had earlier been given a final written warning for the very same act of insubordination. The employer justified this double punishment on grounds that “management had decided that he was going to be fired”.Unsurprisingly, the employer lost the case.
In a related case of Alexander v County Fair Foods (Private) Limited (2000), Alexander was slapped with a suspension and a final written warning for allegedly assaulting a fellow employee. The employer later decided to dismiss him for the same offence. The Commission for Conciliation Mediation and Arbitration (CCMA) ruled that Alexander had been exposed to double jeopardy.
The case of Walsh v Delta Motor Corporation (Private) Limited illustrates what double jeopardy is not. Here, an employee assaulted and severely injured another. The employee’s supervisor counselled the offender and struck an agreement with him to meet the victim’s medical expenses. The supervisor then requested the matter be closed.
The company’s industrial relations department took up the matter resulting in the employee’s dismissal. The court ruled double jeopardy did not apply as the employer merely complied with its disciplinary code and procedure, that is, to hold a disciplinary hearing. The decision to dismiss the employee was allowed to stand. Similarly, in Wium v Zondi and Others (2002), an employee lied he had no previous convictions when he applied for the position of deputy principal and later, principal of a primary school. One member of the school’s governing body who knew the employee’s previous conviction for theft raised alarm.
A disciplinary hearing was held. The presiding officer found the employee guilty and recommended he be given a final written warning. This recommendation was made to the superintendent-general (SG) of the school. The SG rejected the penalty and imposed a dismissal. The court decided double jeopardy was not applicable here because the initial disciplinary hearing only had the duty to recommend, not impose a penalty.
Having said that, there are exceptions to the double jeopardy doctrine. The defences of autrefois acquit or autrefois convict (previously acquitted and previously convicted) only apply to a second criminal prosecution and not to civil proceedings based on the same facts. , e.g. fraud at work, even simultaneously. This is provided for by section 278(2) of the Criminal Law Code (Chapter 9:23 of the Statute Law of Zimbabwe) that stipulates, ‘A conviction, or acquittal, in respect of any crime shall not bar civil or disciplinary proceedings in relation to any conduct constituting the crime’. Another exception is where a higher tribunal refers a matter back for a fresh hearing in order to rectify avoidable errors, as in this case. The Supreme Court points out on a number of occasions, an employee should not escape the consequences of his actions because of procedural irregularities in disciplinary hearings; he should escape because he is innocent. ( Haward Dean 13 March 2020)