It often occurs that when employees are faced with disciplinary action for an act of misconduct, the employee chooses to resign from the employment before the disciplinary hearing takes place. Some employees thereafter refer constructive dismissal cases to the CCMA on the basis that they had no other option but to resign because they feel as if the employer has treated them like criminals by subjecting them to a dismissal hearing. These sort of cases are not likely to succeed.
Some employees resign because they feel that resigning is a far better option as opposed to being dismissed.
The Basic Conditions of Employment Act 75 of 1997 (the “BCEA”) contains no provisions that prevents an employee from resigning when faced with disciplinary action, and similarly the BCEA also contains no provision giving employers the power to refuse to accept a resignation.
Employees who fail to attend a disciplinary hearing, after they have resigned, must take note that this will be construed as the employee wavering his/her right to challenge the allegations against him/her. In such an instance, the employee cannot then afterwards go to the CCMA, disputing that they were dismissed without being given the opportunity to present evidence and to present a defense to the charges against him/her.
Employees must remember that when they tender their resignation, it is not a resignation that terminates the contract immediately upon handing the resignation letter to the employer. The employee is required to provide the employer with the contractual period of notice, usually one calendar month notice. The employee in such a situation is still in the employ of the employer until that date is reached. i.e. after the one month notice is completed. The employer is entitled to proceed with the disciplinary proceedings despite having received the resignation letter, because the employee is still employed by the employer.
On the other hand, if the employee resigns without giving proper notice, he commits a repudiation (breach) of contract. This gives the employer an election to either “accept” the breach and thereby terminate the contract, or reject the inadequate notice and keep the contract alive. In the first situation, the employer’s “acceptance” ends the contract and constitutes a dismissal. In the second instance, the employer is free to hold a proper hearing before the end of the period on which notice would have expired, even in the employee’s absence, and to dismiss the employee if found guilty of the original allegation that resulted in the resignation.
So in summary if an employee gives proper notice in writing, his contract of employment is not terminated on the date of resignation but the employment relationship continues until the last day of the resignation period if the employee works until then or until the date on which the employer decides to release the employee from duty by paying him in lieu of notice.
The employer therefore ultimately has three choices if the employee gives short notice:-
(i) to allow the contract to ‘run out’ without taking further action;
(ii) to terminate it earlier by way of a disciplinary process;
(iii) or to accept the employee’s short notice and end the employment relationship by acceptance.
Employees should also remember that, in the face of allegations involving a criminal charge against them, such as theft or fraud, or perhaps assault, the employer is still entitled to proceed with criminal charges, despite the fact that the employee may have tendered their resignation.
In the case of Uthingo Mnagement (Pty) Ltd v Shear NO & others (2009) 6 BLLR 590 (LC), the two respondent employees resigned from the applicant company’s employ shortly before its license to operate the national lottery expired. At the time, the company had concluded contracts with its staff which stipulated various notice periods according to their length of service. Both respondent employees were required to give four week’s notice. They tendered their resignation on, respectively 19 and 26 March 2007. The commissioner found that the only purpose of the notices was to advise the company of their intention to leave its employ, and that the termination of the contracts before the stipulated dates was premature and constituted a dismissal. On review, the court rejected this reasoning. The commissioner had failed to grasp that once employees tender their resignations, their employers may either allow them to render service for the remainder of the notice period, or pay them off in lieu of notice. The test for a resignation is whether the employee has either by words or conduct evinced a clear intention not to continue with the contract. The employees had done so, and their resignation had been accepted. Even if the company had misinterpreted the contract by regarding the notice period as a calendar month, the employees were not released from the effect of the acceptance of their resignations by their employer. Since neither employee had been dismissed, the commissioner exceeded his powers by assuming jurisdiction.
In Hlela and Richards Coal Terminal Co Ltd (2009) 30 ILJ 441 (CCMA), the Applicant resigned on a month’s notice, and the employer paid him off immediately. He claimed that his being forced to leave work before the end of his notice period construed a dismissal. The commissioner found that there was no dismissal.
Ms R Ramluckan
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