Resigning with immediate effect may not be an easy escape

An all too familiar scenario to employers is the employee who resigns with immediate effect as soon as they are informed that they will be subjected to a disciplinary process and/or hearing.

This begs the question: Can the employer continue with the disciplinary process?

According to the BCEA (section 37), an employee may give notice of his resignation, or an employer may give notice of termination of employment, within the following time periods:

  • One week’s notice, if the employee has been employed for six months or less.
  • Two weeks’ notice, if the employee has been employed for more than six months but less than one year.
  • Four weeks’ notice, if an employee has been employed for one year or more.
  • Four weeks’ notice, if an employee is either a farmworker or a domestic worker who has been employed for more than six months.

These are the minimum time periods allowed by law. The notice periods should also be stipulated in the contract of employment with a stipulation that, should the employee resign, the employer will enforce the notice period, therefor requiring the employee to give the proper notice and to work for the full period.

Whereas the law sees a resignation as a unilateral act, the resignation only comes into effect on the expiry of the contractually agreed notice period. An employee resigning without serving the notice period is in breach of contract.

The employer has two option in such a scenario:

  • Hold the employee to the contractually agreed notice period and require the employee to complete work, or
  • Accept the resignation, cancel the contract (on the basis that the employee breached the contract) and sue the employee for damages through civil court.

Whereas seeking damages through a court may be a unjustifiably large expense to an employer in such a scenario, it may also be unconscionable for an employer to let an employee leave with a clean disciplinary record if the reason for the immediate resignation was to avoid a disciplinary inquiry.

An employee may argue that his/her immediate resignation terminates the employment relationship thus ending the jurisdiction of the employer to continue disciplinary action. However, according to the legally agreed notice periods and the contractually agreed stipulation that an employer will enforce the notice period, the employer may refuse to accept the short notice period. In enforcing the full notice period, the employer can then continue with the disciplinary process, provided that the inquiry and disciplinary hearing takes place before the expiry of the notice period.

Should the employee be found guilty of misconduct and the sanction as determined by an independent chairperson is dismissal, the employee’s disciplinary record can reflect the termination of employment to be due to dismissal rather than resignation. In the case where an employee is found to not be guilty during a disciplinary hearing but had already tendered their resignation and wishes to withdraw their resignation based on this finding, the employer is under no obligation to accept the retraction of the resignation.

This article is being provided for informational purposes. Contact Joblaw for any enquiries and legal advice.


Unauthorized absence from work

The classic “AWOL” employee, or in labour parlance, an employee that is absent without authorisations, is quite possibly the most regular headache for any employer and HR department to deal with. In the current atmosphere of fear and uncertainty related to the COVID-19 pandemic in South Africa, employees as more likely to not report to work, and employers will be challenged to make sure they handle such absences correctly and fairly.

Before any action on unauthorised absence is taken in the months ahead, all employers are urged to take disciplinary action with compassion, to understand that there is a real and visceral threat affecting the judgement of employees on whether or not to report to work – as this will be taken into account at future CCMA challenges should an employee feel unfairly treated. However, employers must also act in the best interest of their business and the future health and well-being of the company and the other employees. This is a tough task.

In terms of the law with regards to unauthorised absences, it is best to start at the first principle, that is, due to the nature of the employment contract between the employee and the employer, an employee has a duty to enter into and remain in service when required to do so except in times that authorisation for absence has been granted.

In circumstances where an employee is unable to return to work after leave or sick leave, the employee can reasonably be required to inform the employer of this continued absence and the reason he/she will not be returning to work as agreed. It is important to note that should an employee be absent without authorisation and this requirement to inform were not met, it does not necessarily warrant a dismissal. The reason for the employee’s absence must first be established and based on that the employer can determine the appropriate disciplinary action to take.

There is a difference between absenteeism, abscondment and desertion in South African law:

  • Absenteeism is a short period of unauthorised absence from work.
  • Abscondment is an unauthorised absence from work for an unreasonably long period.
  • Desertion is when an employee either leaves the employer’s employment or fails to return to work with a clear intention to not return to work at all. If there is an intention to return to work at some point, it is not a case of desertion but of absenteeism or abscondment depending on the length of the absence.

In cases of absenteeism and abscondment, the employer must schedule a disciplinary hearing prior to dismissing an employee by following the normal and fair disciplinary procedures.

In cases where it becomes clear through investigation of the facts that the employee has deserted employment, evidence such as if the employee relocated to a different town or province during the absence or the employee had taken up employment with another employer, it is advisable for the investigating employer to address a letter to the last known address of the employee. This letter should inform the employee that it is believed that the employee has deserted his/her employment and that his/her employment will be terminated on a certain date, should  the employee not return to work or contact the employer by a given deadline. If this deadline is not met, employment will be terminated.

Contact JOBLAW for expert guidance on these and any other labour related issues.