Managerial review vs double jeopardy: Drawing the line in disciplinary action

In a recent decision, the Labour Court of South Africa addressed the complex interplay between disciplinary procedures, managerial review powers, and the principle of double jeopardy in the workplace. The case of SACCAWU obo Manzini v CCMA and Othersinvolved a physical altercation between two employees at Checkers Hyper Valencia, and the subsequent escalation of disciplinary sanctions that led to dismissal.

Background

Ms Mildred Manzini, a customer services clerk, was involved in a physical altercation with a colleague, Ms Thandeka Hlatwayo, during trading hours and in full view of customers. The incident, captured on video footage, showed both employees engaging in aggressive conduct. Hlatwayo was dismissed following her disciplinary hearing, while Manzini received a final written warning.

However, the employer’s Human Resources Manager reviewed the sanction under clause 37 of the company’s disciplinary code, which allows for variation of sanctions to ensure consistency or where a sanction is deemed too lenient. Ms Manzini’s warning was replaced with a dismissal.

The union, SACCAWU, challenged the dismissal at the CCMA, where the commissioner found it both procedurally and substantively fair. SACCAWU then approached the Labour Court to review the arbitration award.

The court’s findings

Substantive fairness
The court upheld the commissioner’s finding that the dismissal was substantively fair. The video footage contradicted Manzini’s claim of self-defence and showed her engaging in violent conduct. The commissioner reasonably found that her actions breached workplace rules and justified dismissal.

Procedural fairness
The court found that the dismissal was procedurally unfair. Manzini was not given an opportunity to make representations before her sanction was reviewed and escalated to dismissal. While clause 37 empowered the employer to vary sanctions, fairness required that the employee be heard.

Double jeopardy
The court clarified that double jeopardy applies when an employee is subjected to multiple disciplinary hearings for the same misconduct. In this case, no second hearing was held, only a managerial review of the sanction. Therefore, double jeopardy did not apply.

Subsidiarity and constitutional claims
The union argued that the dismissal violated section 35 of the Constitution. The court dismissed this claim, reaffirming the doctrine of subsidiarity: labour disputes must be resolved under the Labour Relations Act, not directly under constitutional provisions.

Legal implications

This judgment provides important guidance on several fronts:

Managerial review must be fair
Employers may review disciplinary sanctions but must do so fairly and allow employees to respond before imposing harsher penalties.

Double jeopardy is limited
The principle does not apply to managerial reviews unless a second disciplinary hearing is held.

Procedural fairness is essential
Even if a dismissal is substantively justified, failure to follow fair procedures can result in compensation.

Subsidiarity doctrine applies
Labour disputes must be adjudicated under the Labour Relations Act, not directly under the Constitution.

Key takeaways

For employers

• Ensure disciplinary codes include clear provisions for reviewing sanctions.
• Always allow employees to make representations before escalating sanctions.
• Document reasons for varying disciplinary outcomes to ensure consistency and fairness.

For employees and unions

• Understand the limits of double jeopardy in disciplinary processes.
• Procedural fairness can be a valid ground for compensation, even if dismissal is substantively fair.
• Legal challenges must be framed within the Labour Relations Act, not constitutional provisions.

Final thoughts

The judgment serves as a reminder that fairness in the workplace is not only about the outcome but also about the process. Employers must balance their managerial prerogative with procedural safeguards, and employees must act responsibly when challenging disciplinary outcomes.

The Labour Court’s nuanced approach reinforces the importance of proportionality, consistency, and procedural integrity in employment law.

For advice or more information contact Riona Kalua, Head of our Labour and Employment Team.