Should an employee who resigns after being found guilty at a hearing be afforded the opportunity to refer an unfair dismissal dispute to the CCMA?

Should an employee who resigns after being found guilty at a hearing be afforded the opportunity to refer an unfair dismissal dispute to the CCMA?

The Labour Court confirmed in Mafika v SA Broadcasting Corporation Ltd (2010) 5 BLLR 542 (LC), that a resignation is a unilateral termination of a contract of employment by the employee.

 

In a case before the Labour Appeal Court, Kynoch Fertilizers Limited v Webster (1998) 1 BLLR 27 (LAC), the employee was found guilty of dishonesty in a disciplinary enquiry and dismissed as a consequence thereof. Thereafter, the employee resigned which was duly accepted by the employer. The Court held that the resignation by the employee and the employer’s acceptance thereof amounted to a settlement. The court determined that the sanction from the disciplinary enquiry did not affect the employee’s case because the employee had resigned. Furthermore, the court ruled that the employee had made an informed choice between litigation and securing an unblemished reference and as a result, the employee was not entitled to seek relief in the form of reinstatement or compensation.

 

It is important to note that an employee has the right to resign and can tender his resignation at any time during his employment relationship with the employer. The employee must give notice in terms of Section 37 of the Labour Relations Act 66 of 1995. It sometimes happens that an employee refers an unfair dismissal dispute to the CCMA in cases where there is no dismissal on the side of the employer, such as resignations after being found guilty at a disciplinary enquiry.  At the CCMA, the employer should use this opportunity to raise a preliminary point that there was no dismissal and that the employee will not entitled be to reinstatement or compensation as relief.

 

Chandré Heyns

Dispute Resolution Official – Klerksdorp

 

2019-03-08T09:36:33+00:00March 8th, 2019|Dismissal, Resignation|Comments Off on Should an employee who resigns after being found guilty at a hearing be afforded the opportunity to refer an unfair dismissal dispute to the CCMA?