Some employees and employers who are not affiliated with any labour consultancy, employer organisation or trade union may need to be better informed about the steps or processes that need to be followed when one of the parties wants to terminate the employment relationship. In some cases, employers may find themselves in situations where employees have absconded or have deliberately failed to report for duty for reasons only known to them, leading to an employer verbally dismissing the employee.
The Commission for Conciliation, Mediation and Arbitration (CCMA) deals with many cases where an employer has verbally dismissed an employee after misconduct has been committed. Even though the employer has substantive evidence or sufficient reasons for the dismissal, the Code of Good Practice (Dismissal) provides guidelines for a dismissal to be fair. The risk of a verbal dismissal without proper procedure will always be detrimental to the employer if the matter has been referred at the CCMA or Bargaining Council, in that the Commissioner may order the employer to retrospectively reinstate the employee with full back-pay which could cause severe financial loss. There are also cases where an employee alleges that the employer has verbally dismissed them. In those cases, the onus will be on the employee to prove that the dismissal occurred.
Furthermore, with regard to an employee who fails to put their resignation in writing. In terms of Section 37(4)(a) of the Basic Conditions of Employment Act, 75 of 1997 (BCEA), all terminations must be done in writing, except in circumstances where the employee is illiterate. The employee’s decision to resign is a unilateral act, and there is no obligation on the employer to formally accept the resignation for it to be effective. The employer cannot refuse or deny the employee’s resignation but can hold the employee accountable for the notice period. Resignations must always be given voluntarily because any coerced resignation might be deemed a constructive dismissal.
So, how can an employer mitigate the risks involved when a verbal dismissal has occurred, or an employee has failed to put their resignation in writing? Firstly, it is essential to note that in South Africa Labour law, an employment relationship cannot be terminated without proper procedure being followed. It has been previously communicated in numerous articles by Consolidated Employers’ Organisation (CEO) that before an employment relationship can be terminated, an employer needs to grant an employee an opportunity to state their case before any dismissal, especially in instances where misconduct may have been committed.
Where resignation is not in writing, and the employee had resigned in the “heat of the moment” based on an argument that might have occurred in the workplace, it is always advisable for employers to put the resignation on hold and give the employee a “cooling off period”, for the employee to confirm the termination of the employment relationship.
Article By: Ernest Masupye
Senior Collective Bargaining Coordinator