An employee has the right to resign and tender his or her resignation at any time, provided that the resignation does not place the employee in breach of contract.
An employee who resigns in order to avoid a disciplinary hearing from taking place must remember that upon tendering a letter of resignation, the contract of employment is not immediately terminated. The employee will have to provide the employer with notice of their intention to resign. This means that the employee remains an employee of the employer until the notice period expires and disciplinary action can still be pursued against such an employee during their notice period.
If an employee wants to avoid disciplinary action, they will have to resign with immediate effect in order to terminate the employment relationship immediately. An employer may not reject such a resignation as there are no hard and fast rules laid down in labour legislation regulating such matters. The Basic Conditions of Employment Act also contains no provisions that prevent an employee from resigning when faced with disciplinary action, and there are no provisions in our law giving employers the power to refuse to accept such resignation.
An employer can, therefore, only pursue disciplinary action against an employee who is in his employ. If an employee resigns with immediate effect, they are therefore no longer employees of the employer.
Employers who insist on taking disciplinary action where an employee has resigned with immediate effect will have to resort to the common law remedies available and seek orders for specific performance to hold such an employee to his or her notice period as decided in Naidoo and Another vs Standard Bank SA Ltd and SBG Securities (Pty) Ltd (Case No:J1177/190 [Delivered 24 May 2019]. In this case, the Labour Court ruled that an employer has no power to discipline employees who have been charged with acts of misconduct and dishonesty but who have resigned with immediate effect before the date of their disciplinary hearings. The court found that the correct way to proceed is to hold the employee to his/her contract by seeking an order for specific performance.
Employees who resign to avoid disciplinary action often refer constructive dismissal disputes to the CCMA or bargaining councils. The Commissioners in these forums, however, attempt to identify true instances of constructive dismissals and do not readily reinstate or grant compensation to employees who resign with an ulterior motive.
In Kynoch Fertilizers Limited v Webster  1 BLLR 27 (LAC), the Labour Appeal Court found that the resignation of an employee who had resigned and whose resignation was accepted by an employer amounted to a settlement between them. This means that any rights that may have accrued to the employee by virtue of a dismissal are cancelled by the settlement, and the employee could not seek relief by way of reinstatement or compensation for a constructive dismissal after having elected to resign.
Article by: Jodi-Leigh Erasmus
Dispute Resolution Official – Port Elizabeth