– Ané Kotzé


In an era where we want everything and we want it now, the same dogma seems to surface in the workplace. Employees are reluctant to face disciplinary action, and as a result, choose to resign as soon as they become aware of an employer’s intention to take disciplinary steps against them. Which poses the question – is it allowed?

A resignation in itself is seen as a repudiation of a contract, clearly showing one party’s choice to abandon the terms of the contract insofar as it is applicable to him / her. In order to ensure that the civil courts are not flooded with damages claims, the Basic Conditions of Employment Act, (hereinafter referred to as the BCEA), makes provision for generally accepted notice periods.

South African labour law does however cater for resignation with immediate effect. The acceptance of the resignation by an employer is not a necessity as it is the employee’s right to unilaterally repudiate his / her contract of employment.

In the Labour Court matter of Mtati v KPMG Services (Pty) Ltd , delivered on 18 October 2016, the employee resigned on two occasions: the first instance honouring the notice period, and then later, when discovering that her employer intends on proceeding with disciplinary action, with immediate effect. The employer proceeded with the disciplinary action, despite the employee’s second resignation which was with immediate effect and the employee was subsequently dismissed.

The employee challenged the dismissal on an urgent basis, where after the Labour Court held that the employee could have been disciplined during her notice period, as long as the disciplinary proceedings were concluded prior to the last day of the notice period. The Court held further that, in light of the fact that the employee resigned a second time, and this time with immediate effect, that the dismissal was null and void as the employee’s second resignation terminated her employment contract immediately. The employer therefore had no jurisdiction to dismiss the employee as the contract of employment was no longer in force.

This judgment raised some concern for employers as it appeared as if employees, when being faced with disciplinary action, can merely resign to avoid a termination status of “dismissal” as opposed to “resignation”, especially in cases of gross misconduct.

However, there seems to be light at the end of the tunnel. At least for one sector.

Employees under the public sector is bound by the provisions of the Public Service Act and more specifically Section 16B(3) thereof which reads as follows: “if notice of 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 applicable to the employee”.

It therefore appears as if employees in the public sector will not be able to boycott disciplinary action by tendering an immediate resignation. The Public Service Act gives employers in the public sector the right to place an immediate resignation on hold, pending the outcome of the disciplinary hearing or the notice period, whichever comes first.

The private sector however is bound by the Labour Relations Act , the BCEA and now, the recent Mtati-judgment.

It should however be noted that employers will always have common law remedies available for damages suffered due to the breach of contracts of employment. Employees can also be prosecuted for offences such as theft and fraud, even if employers are not afforded an opportunity to punish employees on a labour front. This, in essence, will have a greater effect on an employee’s future employment endeavours than the termination status of “dismissal”.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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