Resignation pending hearing

employer to a form of indentured labour.
This is not to say that a resignation need not be communicated to the employer to be effective, indeed it must, at least in the absence of a contrary stipulation (see African National Congress v Municipal Manager, George & others) .
A resignation is established by a subjective intention to terminate the employment relationship, and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention, Sihlali v South African Broadcasting Corporation Ltd (2010) 31 ILJ 1477(LC)).
The courts generally look for unambiguous, unequivocal words that amount to a resignation (see Fijen v Council for Scientific & Industrial Research) where the South African Labour Appeal Court stated that to resign, the employee had to “act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfil his part of the contract” (see also Southern v Franks Charlsely and Co [1981] IRLR 278). In our local case, A.C. Controls (Pvt) Ltd v Midzi and another (HC 2035/10) [2010] ZWHHC 73, Honourable Uchena J remarked as follows:
“. . . I agree with Mr Rubaya’s submission that an employee’s resignation unilaterally terminates the contract of employment. His submission is supported by the decision of this court in the case of Muzengi v Standard Chartered Bank & Anor 2000 (2) ZLR 137(HC) where it was held that a letter of resignation constitutes a final act of termination by an employee, the effects of which he cannot avoid without the permission of the employer.
This means once the employee tenders a letter of resignation to his employer, the contract of employment is terminated as the employer cannot refuse to accept his resignation, but can only agree to the employee’s withdrawal of his resignation if he is inclined to doing so.
The employer can, however, institute a claim for the damages he may suffer as a result of the employee’s resignation without giving him adequate notice. See also the case of Mudakureva v Grain Marketing Board 1998 (1) ZLR 145 (SC) where the Supreme Court confirmed the finality of a letter of resignation . . .”
The general trend usually is that employees also sometimes resign in the face of disciplinary action, i.e. before the hearing is concluded, during the proceedings, and then some resign after the verdict and finding has been handed down.
Does the employee have the right to resign as above and then refer a dispute to the courts?
Put differently, what effect does such a resignation have on the employee’s right to litigate?
This question was addressed in Kynoch Fertilizers Limited v Webster [1998]. The employee in this case had been found guilty of dishonesty at a disciplinary hearing, and was dismissed.
The matter was originally referred to the Industrial Court, who found that the dismissal was unfair and the employer took the matter to the Labour Appeal Court and the employee then resigned on his own.
This court found that the resignation by the employee, and its acceptance by the employer, amounted to a settlement.
The court held that the employee had made an informed choice between litigation and securing an unblemished reference.
Having made this choice he was not entitled to seek relief by way of reinstatement or compensation.
The court held further that in writing his letter of resignation, it was obvious that he intended to resign, and the employer accepted his offer to resign.
Therefore there was a mutually agreed termination of the contract of employment.
The court held that the respondent made an informed choice between litigating about a dismissal which he considered to be unfair, and the immediate benefit of being able to secure an unblemished reference with which to set about looking for a new job.
Resignation before disciplinary action seems to be an increasingly frequent occurrence.
When an employee is faced with disciplinary action for an act of misconduct, the employee elects to resign from the employment before the disciplinary hearing takes place.
In some instances, it has been known that the employee resigns, and then refers a dispute of constructive dismissal to the courts.
The constructive dismissal dispute is usually based on allegations by the employee that they are innocent of the charges, and cannot accept being treated like a criminal by the employer, that they have been defamed, and therefore had no option but to resign.
Constructive dismissal disputes of this nature will not succeed. In other instances, employees resign because they feel that a resignation “looks better on my record” than does a dismissal and that the resignation will make the allegations disappear, and that the employer can prove nothing.
Obviously, the employer has concluded that an act of misconduct has occurred and has hopefully investigated the matter fully, and has decided that the disciplinary action is called for.
If you resign without notice, your contract will be terminated immediately and will take effect before any dismissal.
However, you may be in breach of contract, unless your employer has done something fundamentally serious to breach your contract first, and you resign in response.
This is called a repudiatory breach and you accept the breach by leaving promptly.
Bringing disciplinary proceedings that are without foundation and where the employer clearly has no reasonable belief in the misconduct could be an example of such a breach, but this is a high burden to show.
If you resign without notice, and there is no repudiatory breach, then it is open to your employer to sue you for breach of contract, but they would have to show that they sustained financial losses by you not working your notice period.
If you are on suspension, then there is an argument that they do not have any losses as you are not at work anyway.
These resignations by the employee are usually in the face of a serious charge or something of a serious nature.
In other words, an offence of such gravity that dismissal is likely to result. The Labour Act Chapter 28:01 contains no provisions that prevent an employee from resigning when faced with disciplinary action, and similarly the Act contains no provision giving employers the power to refuse to accept a resignation.
However, such resignations should be with immediate effect and usually result in breach of contract, especially contractual or statutory notices.
Some employees when faced with serious disciplinary charges deliberately fail to appear at the disciplinary hearing.
However, it must be remembered that this will imply that they have waived their right to be heard.
The employee then cannot afterwards go to the Labour Court, complaining that they were dismissed without being given the opportunity to present a defence.
The hearing will continue in the absence of the employee, and based on the evidence placed before him, the chairperson will arrive at a verdict, which may include dismissal.
Employees must remember that when they tender a letter of resignation, it is not a resignation that terminates the contract immediately upon handing it to the employer.
The employee is required to provide the employer with the contractual period of notice, for example, one month.
Therefore, the letter of resignation, in fact, informs the employer of the employee’s intention to terminate the employment contract on a future date, one month hence.
The employee remains in the employ of the employer until that date is reached and therefore the employer can still go ahead with the disciplinary proceedings, because the employee is still employed.
Thus, a resignation by an employee when faced with disciplinary action does not necessarily “look better on the employee’s record”, because the employee’s record will still contain details of the alleged offences, details of the disciplinary hearing held in absentia, and the outcome of the disciplinary hearing.
If you resign with notice, then you are bound by your contractual obligations throughout your notice period.
This will include attending a disciplinary hearing if it is convened during that period.
If you resign without notice, then your contract will be terminated immediately and will take effect before any dismissal.
It is, of course, a decision to be made by the employer. There are many employers who have better things to do with their time than pursue such a matter in the face of a resignation from the employee, and they simply drop it and get on with the task of running their businesses.
Employees should also remember that, in the face of allegations involving a criminal element, such as theft or fraud, or perhaps assault, the employer is still entitled to proceed with criminal charges, despite the fact that the employee may have tendered a resignation.
This is so because disciplinary matters are civil matters, which are dealt with in civil proceedings, whereas criminal matters are dealt with in criminal proceedings.
These are parallel systems and an outcome in one has no bearing in another. As a matter of principle, the employer has no power to reject your resignation, but it’s always good to resign with dignity, as there is always tomorrow.
Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.