A WARNING AND I HAVE TO PAY FOR DAMAGES! IS THAT EVEN FAIR?

Accidents are bound to happen in every workplace, some can be foreseen and prevented and others just happens. I remember years back, I represented a member in Mpumalanga who was traveling with one of the employer’s vehicles to Johannesburg for training. On his way back, without warning, a flock of guinea fowl took off and flew into the vehicle he was traveling with. This incident could not have been foreseen or prevented, but it did result in damages to the employer’s vehicle. In this scenario the member could not have been held liable for the damages as his actions was not willful; reckless or negligent.

But what if you do have an accident at work? For instance the vehicle that you have repaired; spray-painted or serviced is damaged or destroyed as a result of poor workmanship, negligence or even gross negligence; or the document that you have signed, without making sure of all the facts, resulted in a financial loss to the employer; or company assets were left unsecured and is now missing. These are some of the scenarios where you might have been subjected to a disciplinary hearing where after you were held liable for the monetary value of the loss and received a written warning (WW) or final written warning (FWW).

The questions raised by many of our members: Is this not double jeopardy? Is this even fair? Am I now punished twice for the same misconduct?

Double Jeopardy

What exactly is ‘double jeopardy’? The Labour Court in Solidarity obo Oelofse v Armscor (SOC) Ltd and Others (JR2004-15) [2018] ZALCJHB 87 (21 February 2018) held that double jeopardy occurs when a ‘person…[is]… charged again for the same offence that person had already been found guilty of.  In the context of employment law…an employee cannot be charged in disciplinary proceedings for the same misconduct, based on the same facts, if already subjected to disciplinary proceedings and found guilty of that misconduct with punishment dispensed’. (Paragraph 44) The court did however warn that double jeopardy is a more complex issue and each case must be evaluated on its own merits.

Double jeopardy can then be ruled out as the penalty imposed might be twofold, but you were not subjected to two disciplinary enquiries for the same misconduct.

Fruitless spending

In another Solidarity matter, Solidarity obo Mohammed v Air Traffic and Navigation Services (Pty) Ltd [2011] JOL 27921 (CCMA), the arbitrator was confronted with a dispute around perceived double jeopardy. In this scenario the employee, Mohammed, received a FWW and he had to pay an amount of R7 000 back to the employer. The employer had to spend R7 000 to recover the erroneous payment of R4 million that the employee negligently made to the wrong beneficiary.

Mohammed, not happy with the fact that he had to pay the R7 000 as well as receiving the FWW, lodged a complaint to the CCMA and claimed double jeopardy.  

The arbitrator found that there was no double jeopardy and that an employer is entitled to reclaim ‘fruitless spending of other people’s money’. The fairness that comes into play is giving the employee an opportunity to comment on why he/she should not be held liable. Once wilful damage; negligence or gross negligence has been established, the employer’s right to reclaim fruitless spending will be actioned.

A simple analogy, when you break a window and progressive discipline is applied you might receive a WW or FWW. The warning or progressive discipline does not repair or replace the window. The purpose of a WW or FWW is to warn you to be careful and to comply with the internal rules and regulations. Someone must still pay for the repair or replacement of the window, fruitless spending as a result of your conduct. It is for this reason that the employer may hold you liable for the cost/loss.

Conclusion

In line with the MIBCO Main Collective Agreement, the employer may deduct damages after a formal hearing was held, and the employee was found guilty of gross negligence or wilful damage. Provision is also made for a maximum of 30% of an employee’s earning to be deducted on a weekly or monthly basis.

Responsibility is the key word!

If in doubt, remember, MISA is just a phone call away!

(Article by Anel Oosthuizen and Tiekie Mocke)

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