MAY AN EMPLOYEE RESIGN TO AVOID A DISCIPLINARY HEARING?[Monday, December 11, 2017 15:41:16]
An employee is usually appointed in terms of a contract of employment. Even if no written contract was concluded, an employment relationship still exists if the Employer has agreed to employ the Employee on certain terms. The parties’ employment is governed by the written contract of employment (if one has been signed), the provisions of the Basic Conditions of Employment Act [“the BCEA”, Act 75 of 1997] and relevant collective agreements (for example those that exist in MIBCO or the MEIBC). In terms of the BCEA, an employee must resign in writing [section 37(4)(a)]. An employee must give either 1 week’s notice if employed for less than 6 months, 2 weeks’ notice if employed for 6 to 12 months, and 4 weeks’ notice, if employed for longer than a year [section 37(1) of the BCEA]. An employee whose working conditions are made intolerable by the employer may resign without notice and may refer an unfair dismissal dispute to the CCMA [this is known as “constructive dismissal]. The onus (which in itself is onerous) is on the employee to show that his working conditions were subjectively and objectively intolerable.
Resigning, to avoid facing a disciplinary hearing
Employees sometimes resign in order to avoid facing a disciplinary hearing. Although, strictly speaking, such resignations may be in breach of a contract (if the resignation is on short notice, or without notice), or contrary to section 37 of the BCEA, it is not necessary unlawful. The reason for this, is that an employee cannot be forced to be at work or to be employed against his will. Furthermore, a resignation is a unilateral act, and does not require the consent of the employer for the employment relationship to terminate. This has been confirmed by a number of Labour Court decisions [see for example Lottering & others v Stellenbosch Municipality (2010) 31 ILJ 2923 (LC)].
In Mtati V KPMG Services (Pty) Ltd (2017) 38 ILJ 1362 (LC), the employee resigned with immediate effect, before a disciplinary hearing into allegations of misconduct against her, could begin. Notwithstanding the employee’s attempt at persuading the employer not to proceed with the hearing, the employer continued with the hearing, found the employee guilty and dismissed her. The employee took the employer to court and sought an interdict against the employer. The court found that, at the time the chairperson conducted the disciplinary hearing against the employee in this matter there was no employment contract between the parties and thus that the employer had no power to discipline her. The court therefore declared the disciplinary hearing to be null and void and set it aside.
In the banking sector, employees who are dismissed for dishonesty, are “RED listed”. The Banking Association of South Africa, keeps a register of employees who are dismissed for dishonest conduct, by South African banks (who are members of BASA). Such employees face an uphill and are virtually unemployable in the banking industry due to their listing on the RED system. This practice, although useful to keep fraudsters out of employment in the banking sector, is open to abuse by the banks. I have had at least two cases of employees who were incorrectly dismissed by a bank and thereafter found not guilty by the CCMA. As a consequence, they were reinstated, compensated and their names were removed from the RED list. In another matter, Muthusamy v Nedbank Ltd (2010) 31 ILJ 1453 (LC), the employee resigned with immediate effect, after being notified that a disciplinary hearing would take place, but before the hearing commenced. He lost his bid in the Labour Court to interdict the bank from proceeding with the hearing, because he was no longer an employee. In effect, by resigning, he had waived his right to challenge the allegations at the internal disciplinary hearing.
However, in the case of Nogoduka v Minister of the Department of Higher Education and others  6 BLLR 634 (ECG), the Court found that an employee is bound by the Public Service Act 103 of 1994, which provides, in section 16B(6) as follows: “(6) If notice of a disciplinary hearing was given to an employee, the relevant executive authority shall not agree to a period of notice of resignation which is shorter than the prescribed period of notice of resignation applicable to that employee.” The Court accordingly failed to assist the employee who had resigned on short notice simply in order to escape the disciplinary hearing.
Unless a Statute (or possibly, the contract of employment, provides otherwise), there is no point in continuing with a disciplinary hearing, once the employee has resigned. This is because, in law, the employment relationship has terminated and the employer has no jurisdiction over the employee. In such cases, the reason for termination of employment, which should be reflected in the certificate of service [in terms of section 42(g) of the BCEA], is “resignation”.
Rudolf Kuhn- labour law attorney, Pretoria, December 2017