It happens all too often that Employers find themselves at the CCMA, after former employees, who have resigned, refer disputes for unfair dismissals or constructive dismissals.

 

Employers, upon their arrival at the CCMA to contest these matters, are often surprised by the allegations which their former employees now make, which have led them to referring these disputes to the CCMA.

 

It is not uncommon for Applicants who, according to their past Employers had resigned, to bring allegations at the CCMA stating, for example, that, “I was forced to resign”, or “The working conditions were unbearable”, or “I didn’t understand what I was signing” or even that the resignation letter submitted by an Employer as evidence, was not signed or written by the Applicant.

 

It goes without saying that this can potentially put an Employer in a precarious position, sometimes forcing an Employer to settle a dispute, or potentially risk an adverse arbitration award, which can result in huge financial implications.

 

The question that an Employer finds him/herself asking, is, “How do I ensure that my employee’s resignation will not result in me ending up at the CCMA or the Bargaining Council?”

 

There is, unfortunately, nothing an Employer can do to ensure that he or she avoids a matter being referred to the CCMA. However, there are certain precautionary steps that an Employer can follow, when an employee intends on resigning, to minimise the probability of an adverse arbitration award.

 

It is understandable that resignations can sometimes be emotional in nature, and in these situations, parties may sometimes dispense with the necessary formalities to their own detriment.

 

Employers should, as far as possible, ensure that when an employee makes the decision to resign, that the following steps, amongst others, are complied with as far as possible.

  • Establish that the employee is in fact sure that he/she wishes to resign;
  • Ensure that the employee tenders his/her resignation in his/her own handwriting and that it is signed;
  • Avoid verbal resignations as far as possible unless the employee is illiterate;
  • As far as practicable, have a witness present, who will be able to testify regarding the resignation, and what did or did not transpire during the resignation, at the CCMA;
  • If possible, and if it is necessary, make sure that all the repercussions of a resignation are interpreted and explained to the Applicant in a language he or she understands. The interpreter will also be able to testify at the CCMA with regards to the events that transpired during the resignation;
  • Again, if possible, audio or visual recordings may go a long away in helping an Employer at arbitration proceedings.

 

These are but a few examples of steps an Employer can follow in order to ensure that he or she does not land up in an unfortunate situation at the CCMA, but ultimately, all cases are adjudicated based on their own merits.

 

Be sure to be in touch with your local CEO advisor should you find yourself in a situation like this for further information.

 

Article by: Wesley Field

Dispute Resolution Official – Bloemfontein