02/07/2020
Can The Employer Refuse Resignation of An Employee Pending a Disciplinary Enquiry?
I do not know how many times has my employer clients requested me to chair a disciplinary hearing despite the fact that the employee would have resigned just prior to the sitting of the enquiry. In most cases the employer would be very adamant to proceed just because they want to see the employee being sanctioned for his/her transgressions. In some instances, the employee would have resigned in the middle of the hearing when the case is still being heard.
The question that arises is that, is it proper to proceed with the enquiry despite the fact that the employee has resigned before the conclusion of the hearing? In answering this question one has to first understand two things;
• What does the Basic Condition of Employment Act (BCEA) say about resignation?
• What constitute a lawful resignation?
The following are the conditions with which any party to the employment contract MAY terminate the contract of employment. Section 37 of the Basic Conditions of Employment Act stipulates the conditions for serving a notice period;
• one week, if the employee has been employed for six months or less;
• two weeks, if the employee has been employed for more than six months but not more than one year;
• four weeks, if the employee has been employed for one year or more;
What is of importance in Section 37, is the fact that the word MAY has been used. It is therefore self-evident that, it is not mandatory for an employee to serve a notice period. Further to this, Section 37 (6) (b) states that;
“Nothing in this section affects the right—of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law”
What constitute a lawful resignation?
Now that the first question has been addressed, the second issue is what then constitute a lawful resignation. The BCEA indicates that a resignation needs to be in writing for it to be valid. Resignation is a unilateral act by the employee which does not have to be accepted by the employer. The resignation effectively terminates the employment relationship even if it is without a notice period. The employer does not have the right to “veto” the decision of the employee and therefore its acceptance or rejection has no legal consequence. The employer’s recourse is to file for damages to the court and ask for an order to be issued for a specific performance. The question of how the employer can prove and quantify damages attached to the employee’s breach of notice period was dealt with in the case of SAMRO Ltd v Mphatsoe (2009, CLL Vol 18 No 9 page 82).
The BCEA 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. Furthermore, there are no provisions laid down in labour legislation regulating to such matters.
Some employers will prefer to continue with the disciplinary enquiry despite the fact that the employee has tendered a resignation without notice and the employee is no longer in the employ of the employer. These employers will conduct the enquiry in absentia and a sanction of dismissal typically follows.
The exercise of conducting an enquiry after the employee has resigned without notice, not only is a waste of the employer’s precious time, but a waste of resources, as the outcome of the hearing has no legal consequence. However, persisting with the disciplinary hearing and pronouncing a dismissal as a sanction after the employee has resign, may be detrimental to the employer. If the former employee can prove that he/she cannot secure employment due to the former employer’s records reflecting a dismissal as oppose to resignation, the former employee can successfully sue for damages.
Till next time, cheers!
