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Taurai Musakaruka HR Issues
When some employees are faced with disciplinary action for an act of misconduct their immediate reaction is to resign before the hearing takes place. Some employees then refer constructive dismissal cases to the courts on the basis that they had no other option but to resign because they feel that their employer has treated them like criminals by subjecting them to a disciplinary hearing.
These sorts of cases usually do not succeed. Some employees resign because they feel that resigning is a far better option as opposed to being dismissed.
The issue usually hinges around two issues — does the employee has the right to resign, and if so, can he still refer a dispute of unfair dismissal to courts after such resignation?
The employee does have the right to resign and he can tender such resignation at any time, always provided, of course, that his resignation does not place him in breach of contract in some way.
This include notice period required before terminating the contract. The other question is can an employer refuse to accept such a resignation?
Certainly in “the old days”, it was practice to “accept” the resignation. However, subsequent court decisions have indicated that the employer does not have the power to “accept or reject” a resignation.
What the employer does have is the power to refuse to accept a withdrawal of a resignation. That is, once the resignation is given the employee has terminated the contract from their side that is within their rights.
If the employee changes their mind, there is no obligation on the employer to accept a withdrawal of notice.
Some employees prefer to resign rather than go through disciplinary action. That is fine as long as the employee does not want financial compensation.
If the employee plans to bring a tribunal claim, it is extremely risky to resign and almost always a bad idea. Employees can resign and claim constructive unfair dismissal if their employer commits a fundamental breach of their contract.
This can be a breach of a concrete contract term, e.g. the employee’s contractual hours, pay or disciplinary procedure, or a breach of the implied term of trust and confidence.
Constructive dismissal cases are very hard to win for a number of reasons. In a disciplinary context, they are particularly hard to prove.
Resignation is defined as the cessation or pre-mature termination of employment by the employee. Employers are often faced with the predicament of whether or not to proceed with holding a disciplinary hearing where an employee has tendered a resignation to avoid the disciplinary hearing.
It is trite that an employer may only discipline an employee in their employment. Thus an employer may not proceed to discipline a person no longer in the company’s employ.
In 2010, the South African Labour Court confirmed a very important principle. It held that as a matter of authority and principle, an employee has the right to unilaterally terminate the contract of employment on notice.
It is thus important to state that the termination is unilateral. It does not require consent. It is, therefore, essential to point out that acceptance of the resignation is not necessary.
The notice of termination of employment given by an employee is a final unilateral act which once given cannot be withdrawn without the employee’s consent.
This means that it is not necessary for the employer to accept any resignation that is tendered by an employee or to concur to it, nor is the employer entitled to refuse to accept a resignation or decline to act on it.
Ramodibedi J (as he then was) in Pekeche v Thabane and Others CIV/APN/259/98 pointed out that resignation is a unilateral act and that no person may be forced to remain in employment against his will.
A letter of resignation constitutes a final act of termination by an employee. This means that once the employee tenders a letter of resignation to his employer, the contract of employment is terminated as a 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.
In the Lesotho case of Mahamo versus Nedbank Lesotho Ltd (2011) LSLAC 9; an important principle was pointed out by Mosito A J where he stated that an erstwhile employer had no right to proceed against an employee after she had resigned.
This is because the employer had no power in law to discipline an erstwhile employee. The disciplinary power rests in the employer so long as the employment relationship subsists between the parties.
In this case the employee had purported to resign from her employment with immediate effect on April 3, 2006.
The Respondent responded on April 4, indicating that the bank still considered her as an employee until her disciplinary case had been finalised.
On the same day the bank served the employee with disciplinary charges. The hearing was scheduled to take place on April 10, 2006.
It was, however, postponed to April 13. A lot of correspondence was exchanged between the employee and the Human Resources Manager concerning her purported resignation.
In one of such correspondence dated April 11, 2006, the employee made it clear that she would not attend the hearing scheduled for April 13, because she was no longer an employee.
True to the word, the employee did not attend the hearing which proceeded in her absence. She was found guilty and dismissed.
She then appealed amongst other things, claiming her severance pay since she was not fired but resigned. The court ruled in her favour that…” Indeed the Appellant having resigned prior to the purported disciplinary action that was undertaken after she had resigned, the purported dismissal was of no consequence and Appellant still remained entitled to severance pay….”
Similar scenarios have also been noted in Swaziland, namely in the case of Simon Dludlu versus Emalangeni Foods Industries (IC Case No. 47/2004); Graham Rudolph versus Mananga College No. 94/2007 and Nana Mdluli versus Conco Swaziland Limited Case No. 12/2004.In Simon Dludlu v Emalangeni Foods Industries (IC Case No. 47/2004, The President of the Industrial Court of Swaziland P. R. Dunseith, remarked that: “Resignation is a unilateral act which brings about termination of the employment relationship without requiring acceptance…
“While the Respondent took every effort to ensure that the disciplinary hearing was procedurally fair, its efforts were unnecessary because the employment contract had already been terminated by the Applicant himself on October 20, 2000”.
The only remedy available to the employee if the employer resigns without notice is to sue for breach of contract.
By resigning, you are in effect giving a period of contractual or statutory notice of the date you will stop attending work.
Whether the employer formally accepts this or not is irrelevant, you have carried out your legal obligation to give that notice.
However, the fact that you have to or have given notice means that during that notice period you remain an employee, and expected to obey “reasonable instructions”.
Therefore, the company could go ahead with the disciplinary hearing during the notice period and can still dismiss you.
If the employee does not turn up for the disciplinary hearing during the notice period, as they consider that they have resigned, then that could in itself lead to dismissal.
However, usually when people resign in the face of a hearing, their resignations, are usually “with immediate effect”.
Some even send a letter with their child or spouse or friend or sms and they will only come later to collect their remains or few things from their drawers. If the matter is of criminal nature, you will not even see them.
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. The views contained in this article are personal.
Taurai Musakaruka is Human Resources Practitioner. Feedback e-mail to [email protected] or [email protected]
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