Page 81 - Q&A 2019/2020

What is the impact of an immediate resignation
on pending disciplinary procedures?

Tata Mokwayi
August 2019

“We’re investigating a number of employees in our company over the last few
months and identified serious transgressions warranting disciplinary action.
We instructed human resources to issue disciplinary notices to the relevant
employees, following receipt of which three of the employees resigned with
immediate effect. Despite their resignations, can or should we still proceed with
disciplinary action against these employees now that they have resigned?”

If an employee resigns from the employ of his employer, then the employer
may not proceed to discipline that employee after the resignation has taken
effect. This is because, once the resignation has taken effect, the employee is
no longer an employee of that employer and that employer has no authority or
power over the employee. That said, until the employee departs at the end of
his/her notice period, a disciplinary hearing may still be instituted and finalised
during the employee’s notice period.
But what happens if the employee resigns with immediate effect?

To answer this, one must first look at the wording of the resignation letter to
determine whether the resignation is with immediate effect or whether the
employee intends to serve a notice period. The notice period could be a period
Labour agreed upon by both parties by virtue of the provisions of an employment
contract, or in the absence of an employment contract, in terms of the statutory
requirements outlined in the Basic Conditions of Employment Act 75 of 1997.
In this instance the employee agrees to be contractually bound to give a
resignation notice as stated in the employment contract. Or, the resignation
can be with immediate effect where the employee, despite any applicable
notice periods, resigns immediately. This essentially means the employee does
not intend to serve any period of notice applicable and is essentially acting in
breach of their contract of employment.
So, what is the position in the latter instance? There are some conflicting views in
this regard, but in the recent case of Naidoo and Another v Standard Bank SA
Ltd and Another the Labour Court held that an employer does not have power
to discipline an employee following a resignation with immediate effect. The
only way that the employer can achieve this is for the employer to approach
a court to obtain an order for specific performance. The specific performance
order will enable the employer to hold the employee to the terms of the contract
in respect of the notice period and to during this notice period proceed with the
disciplinary action against the employee.

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