On occasion, employers are faced with circumstances in which an employee resigns to avoid disciplinary action.  In fact, some collective agreements in the Public sector, specifically allow for employees to resign at any time prior to a finding being made, after which the disciplinary hearing is stopped.

The dilemma has been that it has been arguable that an employee can, in fact, summarily resign, meaning that the employment relationship terminates immediately.  The upshot of this is that the employer faced a conundrum, namely, is it possible to discipline an employee if the employment relationship has already been terminated by the employee’s summary resignation?

The recent Labour Court case of Mark Michael Coetzee v The Zeitz Museum of Contemporary Art Africa Foundation Trust & others (Case number C517/2018), handed down on 14 June 2018, dealt with this precise issue.

The employee “was handed (an) invitation to make written representations and given a document entitled ‘precautionary suspension from employment’.  The following day, the employee informed the employer that “he wanted to tender his immediate resignation since (he didn’t) want to hurt anyone or (the employer)”.  A statement was released to the press that “an enquiry into (the employee’s) professional conduct has been initiated by the trustees … (the employee) has tendered his resignation.

In correspondence to the employee’s attorneys, the employer’s attorneys recorded that “As matters presently stand … our client regards your client as having resigned with effect from 16 May 2018, subject to four week’s notice as provided for in terms of the law”.  The employer argued that it had never agreed with the employer that his resignation would have immediate effect, or waive the employee’s notice period.

The Labour Court judgment noted that the employer argued that “The material issue in dispute in this application is whether the (employer) in fact accepted the immediate resignation of the (employee) ..”.

The Labour Court held that “the Court is bound to find that the tender of notice was not accepted as an immediate resignation”.  The upshot of this is that employer’s are entitled to elect whether, or not, to accept an employee’s resignation, and to hold an employee to their statutory and, or, contractual notice period, and to continue with any disciplinary process it wishes to initiate against an employee.  It follows that any disciplinary hearing would need to be concluded before the end of the applicable notice period.

This principle was confirmed in Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ (LC), in which it was stated that an employee breaches the employment contract when they leave their employment without giving the required period of notice.  Employees have a contractual obligation to render their services for the duration of their contractually binding notice period.  As such, the employment relationship terminates at the end of the notice period, not on date of resignation.  There is however nothing prohibiting the employer from agreeing to waive the whole, or part of, a notice period, but a n employee has no right to unilaterally do so.

In circumstances where an employer conducts a disciplinary hearing prior to the end of a notice period, any subsequent dismissal would be the true nature of the termination of employment, not the employee’s resignation.

In similar, but different, circumstances, employees may be offered an opportunity to resign, as an alternative to facing disciplinary action.  It would however be deemed unfair for an employee to be offered an option to resign to avoid dismissal; this would amount to constructive dismissal.

Many employers take no action against employees who resign in the face of disciplinary action, as they are quite willing to resolve the matter at hand in that fashion.  Other employers are not quite so flexible, and are of the view that, in principle, it is important to pursue all employees for misconduct, regardless of whether the employee has resigned, or not.