Introduction

The doctrine of “double jeopardy” in employment law (whether an employer may discipline an employee twice for the same misconduct) remains a recurring source of litigation. While the Labour Relations Act, 66 of 1995 (“LRA”), contains no express prohibition against re-disciplining, South African labour law jurisprudence has long held that fairness is the ultimate standard.

The recent Labour Appeal Court (“LAC”) judgment in SAMWU obo Malatsi v South African Local Government Bargaining Council & Others (JA64/23, delivered 30 September 2025) revisits the question in a nuanced context: Where an arbitrator has already exercised disciplinary discretion over certain conduct, may an employer revisit the same misconduct through a second internal process?

The LAC’s decision confirms a crucial principle – once an arbitration award (being final and binding under section 143 of the LRA) imposes a sanction for particular misconduct, the employer is prevented from disciplining the employee again in respect of the same facts unless that award is reviewed and set aside.

Factual and procedural background

The appellant, Malatsi (“the employee”), was employed by the Gert Sibande District Municipality (“the municipality”), initially as an intern in 2009 and later permanently as an accountant.

In 2012, after its bankers notified the municipality of possible fraudulent activity in relation to its bank account, the municipality commissioned a forensic investigation. The investigation revealed that between 31 January 2012 and 23 February 2012, several unsuccessful attempts had been made from the employee’s computer to access the municipality’s cash focus internet portal.

The employee was charged with failing to conduct himself with honesty and integrity, alternatively, fraud, in that he attempted to access the municipality’s bank account without authorisation. The employee was found guilty of misconduct and  the municipality dismissed him. The employee referred an unfair dismissal claim to the CCMA.

Importantly, evidence at arbitration revealed that both the employee and his colleagues wrote their passwords on desk calendars, and that it was common practice for auditors and employees to share passwords.

First arbitration

An arbitrator acquitted the employee of dishonesty on the basis that the investigation could not accurately establish the identity of the person who had been operating the computer at the relevant time. However, the arbitrator criticised the employee for negligently storing and sharing his password, holding that “his hands are not clean”. Instead of ordering full reinstatement with backpay, the arbitrator ordered reinstatement without retrospective pay for the four-month period between dismissal and reinstatement, effectively treating it as an unpaid suspension for password-related misconduct.

The municipality reviewed the arbitrator’s decision, but the Labour Court upheld the award. The employee was reinstated.

Second dismissal and arbitration

Two weeks later, the municipality convened a new disciplinary hearing, charging the employee with gross dishonesty for sharing passwords and failures to comply with IT security practices. Again, dismissal followed, and again the employee approached the CCMA.

A second arbitration upheld the dismissal, rejecting the employee’s double jeopardy argument on the grounds that the charges were “new”, despite arising from the same facts. On review, the Labour Court agreed.

Appeal to the LAC

The employee appealed the Labour Court’s decision to the LAC. The LAC overturned the decision, holding that the first arbitrator had already imposed a sanction for password-sharing misconduct, thereby precluding a second disciplinary penalty on the same issue. The dismissal was found substantively unfair.

Double jeopardy in labour law: a principle of fairness

Unlike criminal law, labour law does not mechanically apply autrefois acquit or res judicata. In BMW (SA) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC), the court held that fairness alone is the test, and while a second disciplinary hearing is not automatically prohibited, it should be reserved for exceptional cases. Similarly, Branford v Metrorail (2003) 24 ILJ 2269 (LAC), affirmed that employers may correct earlier decisions where further information emerges, provided fairness dictates such action. In Mahlakoane v SARS (2018) 39 ILJ 1034 (LAC), the court upheld a second hearing where new facts surfaced after the first process was concluded.

However, Malatsi departs materially from these cases. Here, the issue was not merely whether the employer had new evidence, but whether a binding arbitration award had already imposed a final sanction for the conduct in question. That factual distinction proved decisive.

The LAC’s decision

The LAC held that even if the first arbitrator had arguably exceeded his remit by commenting on password-sharing when it was not the formal charge, the municipality accepted the award, implemented reinstatement, and never reviewed the arbitrator’s finding on sanction.

Accordingly, the court held that:

“There can be no doubt that the sanction applied by the arbitrator and the second disciplinary hearing was in respect of the same misconduct… for the third respondent to charge the appellant with the same misconduct in the face of an arbitration award by which it was bound… was substantively unfair.” [emphasis added]

In other words, a disciplinary sanction imposed by an arbitrator carries finality, even if the employer believes the arbitrator misapplied or misconstrued the charges. The proper route was review—not re-discipline.

Conclusion

Malatsi does not undermine the flexibility afforded to employers in BMW and Branford. Rather, it clarifies its limits. The principle is now settled, double jeopardy in labour law is not an absolute bar, but a matter of fairness governed especially by the finality of arbitration outcomes.

Where an arbitrator has already sanctioned specific conduct, an employer cannot “try again” internally. Its only lawful recourse is to take the award on review in an attempt to have it set aside.

Employers must therefore treat arbitration awards as not merely procedural setbacks, but binding decisions with disciplinary force. Anything less risks costly reinstatements years later.