Can you resign with immediate effect to avoid disciplinary action?
By Jay-Dee Britz, MISA’s Senior Labour Advisor.
In a previous article some time ago, we looked at whether an employer can still take disciplinary action against an employee who has resigned with immediate effect.
In this article, we revisit the question in the light of two recent Labour Court decisions that seem to contradict each other.
In the Coetzee case the Labour Court found that an employer may proceed with disciplinary action after an employee has resigned. The court further found that an employee has either a statutory or contractual duty to give the prescribed notice and therefore held that an employee’s employment contract only terminates after the end of the notice period. Nothing therefore prohibits an employer to proceed with disciplinary action against an employee before the employees’ notice period has lapsed.
This issue was considered again in the recent Naidoo case. In this matter, two employees resigned with immediate effect pending disciplinary action. The employer informed the employees that their resignations were rejected and that the disciplinary proceedings would proceed. The employees approached the Labour Court who held that the employer was prohibited from pursuing disciplinary action against the employees as they had resigned with immediate effect.
Looking at the Naidoo case, it seems that the employer will first have to resort to alternative remedies and seek an order for specific performance to hold an employee to his or her notice period, before a disciplinary hearing can commence.
Remember, if you resign with immediate affect your employer can still institute a damages claim for breach of contract.
As you can see, it is a complicated matter and a decision you should make with caution. It is therefore important that you speak with MISA first to guide you along the way.
As always, we are only a phone call away!