In any workplace, dealing with misconduct is part of the territory. But what happens if an employee is disciplined—and then later called in again for the same offence? Is that fair? Is it legal?

This is where the concept of double jeopardy comes in. Though the term is usually heard in criminal law, it applies in equal facets in the workplace too.

In the work context, what is double jeopardy? It means that once an employee has been formally disciplined for a particular incident—whether it’s a warning, suspension, or any other sanction—they should not be disciplined again for the same offence based on the same facts. The idea is entrenched in basic fairness. Once a matter has been dealt with, it should be put to rest. Employees shouldn’t have to fear a second punishment just because someone in management changed their mind or didn’t like the outcome of the first hearing.

Eswatini’s legal system is a hybrid of Roman-Dutch common law and customary law. While the 2005 Constitution does not explicitly mention double jeopardy, the principle is upheld through judicial interpretations and the country’s adherence to international human rights standards. Notably, Eswatini is also a party to the International Covenant on Civil and Political Rights (ICCPR), which, under Article 14(7), states:

“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

Can we have exceptions at all?

Yes, and they’re importance can’t be overstated:

1. New, serious evidence: If something important comes to light after the first hearing, something that couldn’t have reasonably been discovered earlier, then reopening the case could be justified.
2. Procedural flaws: If the first disciplinary process was fundamentally unfair (an employee wasn’t given a fair chance to respond, or the chairperson was biased for example), then the employer may have grounds to start over.
3. Dishonesty or bad faith in the process: If the person handling the first hearing acted dishonestly—say they let a friend off lightly, or issued an unreasonably lenient sanction—then a re-hearing may be justified to protect the integrity of the process.

Is this relevant at all in Eswatini?

While Eswatini’s Employment Act, 1980 doesn’t spell out the rule of double jeopardy directly, it does require all disciplinary action to be procedurally and substantively fair. And Eswatini’s courts have inculcated this rule over the plethora of decisions issued. The Industrial Court in Eswatini is likely to rule against an employer who punishes an employee twice for the same misconduct without a valid reason.

Employee and Employer – keep a keen eye.

Employers: Don’t discipline twice just because you don’t like the outcome of the first hearing. Make sure the first process is fair, thorough, and well-documented. Employees: Know your rights. If you’ve been disciplined already, and you’re called in again for the same issue, ask for clarity—and seek advice if something feels unfair.

Everyone: Workplace discipline isn’t rooted in endless punishment but rather dealing fairly with misconduct and maintaining trust and order as the workplace moves forward.

• For further information and legal advice on the above you may contact the writer.