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Eight factors you MUST consider before you conduct a second enquiry

by , 09 September 2013
Labour law allows you to conduct a second disciplinary enquiry. BUT, there are certain factors you must consider to determine whether it's fair to conduct one or not. Read on to find out what these are so you can comply with the law.

Double jeopardy is the general principle of fairness that a person shouldn't be tried twice for the same offence.

This means, you mustn't subject your employee to a second disciplinary enquiry for the same offence.

The Labour Law for Managers Loose Leaf Service explains that the phrase that's often used to describe this situation is the so-called 'rule against 'double jeopardy''.

This means there are some exceptions to the rule against double jeopardy and situations in which you'll be able to have a 'second bite at the cherry', by conducting a second disciplinary enquiry.

Whether or not to open a second disciplinary enquiry against your employee will depend on whether it is, in all the circumstances, fair to do so.

So consider these points…

Eight factors to consider when determining if it's fair to conduct a second enquiry

According to the Labour Law for Managers Loose Leaf Service, the courts take into account the following factors to determine whether it's fair to conduct a second enquiry or not:

Consideration #1: Whether the first hearing was conducted in good faith by the presiding officer. For example, if the first hearing was conducted properly, if proper procedures were followed or if the hearing was fair.

Consideration #2: Whether the presiding officer had the power to make a final decision or only make a recommendation.

Consideration#3: Whether the first inquiry was conducted in accordance with your disciplinary code.

Consideration#4: Whether you acted in good faith as an employer when you decided to hold the second inquiry.

For example, you wanted to rectify procedural defects that occurred in the first enquiry and not impose a harsher sanction for the same offence because the first Chairperson was too lenient.

Consideration#5: Whether the second inquiry was provided for in the disciplinary code.

Consideration#6: The gravity of your employee's offence.

Consideration#7: The extent to which the penalty imposed by the first presiding officer was consistent with the sanction prescribed by the disciplinary code and the penalties imposed previously for the offence.

Consideration#8: Whether, in cases where the employee was found not guilty by the first presiding officer, the finding was supported by the evidence.

Remember, fairness is the yardstick by which infringements of the double jeopardy rule will be assessed.

So make sure you consider all these factors when determining whether it's fair to conduct a second enquiry. And only conduct a second disciplinary enquiry when you're absolutely sure you'll pass the fairness test.



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