In this case, the employee was given notice to attend a disciplinary hearing. The employee cashed a cheque without following proper procedures. It later transpired that the cashed cheque was fraudulent, which caused the employer a loss of approximately R30 000.00.
On the day that the employee received the notice to attend the disciplinary hearing, she handed her superior, her letter of resignation. The letter stated that she was tendering her “resignation with immediate effect”. The employee was informed that she would be required to work her notice period. The disciplinary hearing was to proceed as the hearing was set down within her notice period. The employee disagreed as she believed the employment relationship ended when she tendered her resignation with immediate effect, and therefore the employer was not entitled to proceed with the disciplinary hearing. The disciplinary hearing proceeded in the absence of the employee, she was found guilty, and the sanction was that of a summary dismissal.
Initially, the Labour Court held that once an employee hands in her resignation indicating that the resignation is with immediate effect, the employment relationship comes to an immediate end and the employer has no right to insist that the employee serves his/her notice period. The Labour Court went on to declare the employee’s dismissal “null and void”.
However, the LAC held that the “argument that where an employee gives notice of termination by way of resigning with immediate effect, such an employee cannot be compelled to continue working for the employer because resignation is a valid unilateral act that comes into effect on the date the employee dictates that it will come to an end, is misconceived.”
The LAC went further to confirm that a resignation that is not in compliance with the required contractual notice does not validly terminate the contract of employment unilaterally. Accordingly, the employee’s resignation only takes effect when the contractual notice period runs its complete course or if there is no contract on expiry of the notice period provided for in terms of Section 31 of the Basic Conditions of Employment Act.
The LAC concluded that the employer was entitled to proceed with the employee’s disciplinary enquiry during her notice period, as it elected to hold her thereto. The Labour Appeal Court (LAC) found that the employee’s view that her resignation was with “immediate effect” was of no consequence as it did not comply with her contractual notice period.
The LAC has thus clarified the issue of the effect of a resignation with immediate effect pending a disciplinary hearing.
In light of the above, an employee will not be able to escape the disciplinary process by tendering a resignation with immediate effect. The essence of the judgment is that there exists no such thing as resigning with immediate effect in the employment context unless the employer waives the notice period. Notice must be served or given either in terms of the contract of employment or in terms of section 37 of BCEA
Article by: Jamie Gonasagree Moodley
Dispute Resolution Official – Durban