Change the world

National Tertiary Education Union

12/02/2016

It seems to be an increasingly frequent occurrence that, when an employee is faced with disciplinary action for an act of misconduct, the employee elects to resign from the employment before the disciplinary hearing takes place. In some instances, it has been known that the employee resigns, and then refers a dispute of constructive dismissal to the CCMA.

The constructive dismissal dispute is usually based on allegations by the employee that they are innocent of the charges, and cannot accept being treated like a criminal by the employer, that they have been defamed, and therefore had no option but to resign. Constructive dismissal disputes of such nature will not succeed.

In other instances, employees resigned because they feel that a resignation “looks better on my record” than does a dismissal. The question is what are the options of the employer when the employee does resign when faced with disciplinary action? Obviously, the employer has concluded that an act of misconduct has occurred; he has hopefully investigated the matter fully, and has decided that the disciplinary action is called for.

These resignations by the employee are seldom in the face of a minor matter - it is usually a serious charge, such as theft or fraud, unauthorised possession of company property, absence without leave (perhaps not for the first time), extreme insubordination or something of a serious nature. In other words, an offense of such gravity that dismissal is likely to result.

There are no hard and fast rules laid down in labour legislation regulating such matters. The Basic Conditions of Employment Act contains no provisions that prevent an employee from resigning when faced with disciplinary action, and similarly the Act contains no provision giving employers the power to refuse to accept a resignation.

Employees usually resign because they think that the resignation will make the allegations disappear, and that the employer can prove nothing. Employees who resign, and subsequently failed to appear at the disciplinary hearing, must remember that it is then construed that the employee has waived their right to present a defence against the charges. The employee then cannot afterwards go to the CCMA, complaining that they were dismissed without being given the opportunity to present a defence.

The downside for the employee is that the employer, upon receiving the letter of resignation, immediately concludes that the employee is guilty. Employees should remember that the employer has, by this time, gathered sufficient evidence that leads him to believe that the employee is guilty.

Until such time as the employee can dispute that evidence, or put forward a justifiable defence to the charges, the employer will continue to believe, based on evidence that he has, that the employee is guilty. If the employee resigns from the employment, and does not appear at the disciplinary hearing, there is only one possible outcome. The hearing will continue in the absence of the employee, and based on the evidence placed before him, the Chairperson will arrive at the verdict of guilty. The employer is fully entitled to proceed with the disciplinary hearing even if the employee has resigned.

Employees must remember that when they tend a letter of 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 - this may be, for example, one month. Therefore, the letter of resignation in fact uniforms the employer of the employee’s intention to terminate the employment contract on a future date.

The employee remains in the employ of the employer until that date is reached - and therefore the employer can still go ahead with the disciplinary proceedings, because the employee is still employed by the employer. Thus, a resignation by an employee when faced with disciplinary action does not necessarily  “look better on the employee's record,”  because the employee's record will still contain details of the alleged offences, details of the disciplinary hearing held in absentia, and the outcome of the disciplinary hearing.

In Caroline Lock vs. Times Two Properties the CCMA commissioner stated that;

“I am satisfied that not only was the resignation not accepted (if it was accepted a disciplinary hearing would not have been instituted) but also that the condition upon which the resignation was tendered, was not accepted. The applicant included in the resignation letter the condition that “I would also like to work my remaining leave owing to me in my notice?” This condition was rejected by the respondent who sent her packing by suspending her, and the resignation fell away, as is evident not only by the fact that the disciplinary hearing was instituted by the respondent, but also by the fact that the applicant participated fully in the disciplinary hearing.”

From the above it is clear that employers should not attempt to rely at the CCMA on the resignation of the employee and argue that no dismissal took place because the employee resigned before the hearing. In such cases the employer effectively changed the terms of the termination of the employment relationship and a dismissal resulted. The employer will now have to be able to prove that the dismissal was substantively and procedurally fair.

It is, of course, a decision to be made by the employer. There are many employers who have better things to do with their time than pursue such a matter in the face of a resignation from the employee, and they simply drop it and get on with the task of running their business. Employees should also remember that, in the face of allegations involving a criminal element, 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 tended a resignation.

Employers that do not want to continue with a hearing after the employee resigned should be extremely careful in accepting the resignation of the employee. The employee should be informed that the company accepts his or her resignation but that;

  • the resignation is in the face of disciplinary action,
  • premature,
  • out of the free will, and
  • that the employee cannot claim that he / she was constructively dismissed by the employer as a result of the disciplinary action against him / her.

Further to this the employee must be invited to withdraw the resignation if he / she resigned in the heat of the moment and believes that it would be better to continue with the hearing after receiving the letter referred to above.

For more information please visit www.labourguide.co.za

by Nicolene Erasmus and Jan du Toit