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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.