In South African law it common for a period of notice to become applicable upon termination of any employment relationship between an employer and an employee.<\/p>\n
These periods are governed by legislation and the individual employment contract, says Sandile Tom, director at Werksmans Labour & Employment practice.<\/p>\n
“However, notwithstanding this, there is uncertainty in our labour law about the position where an employee resigns with immediate effect in the face of a pending disciplinary enquiry,” Tom said.<\/p>\n
“Particularly, whether the employer retains the right to continue with the disciplinary enquiry post the resignation with immediate effect. This is a matter of debate in our labour jurisprudence which is occasioned by conflicting judgements by the Labour Court.”<\/p>\n
He outlined some of these judgements below.<\/p>\n
Mtati v KPMG Services<\/strong><\/p>\n In Mtati v KPMG Services (Pty) Ltd [2017] 3 BLLR 315 (LC)<\/em>, the Court held that where an employee resigns with immediate effect, the employment relationship ceases and the contract of employment terminates.<\/p>\n The employer loses its right to proceed with a disciplinary enquiry against that employee.<\/p>\n The Court further held that the employer lacked jurisdiction to institute a disciplinary inquiry over the employee when she tendered the resignation with immediate effect and the continuation with the disciplinary inquiry would be null and void.<\/p>\n The Court went on to find that where an employee resigns with a notice period, the employment relationship still subsists therefore the employer is still entitled to discipline such an employee.<\/p>\n Coetzee v Zeitz MOCCA Foundation Trust and Others<\/strong><\/p>\n In Coetzee v Zeitz MOCCA Foundation Trust and Others (2018) 39 ILJ 2529 LC,<\/em> the Court held that, on the facts before it, the employer did not accept the employee’s resignation with immediate effect, thus the employment relationship did not terminate.<\/p>\n The Court found resignation takes full effect at the end of the notice period. Resigning with immediate effect constituted a breach of the employment contract.<\/p>\n The Court went on to find that an employer is not bound to accept a resignation with immediate effect.<\/p>\n The employer has two avenues when it is in receipt of a resignation by an employee – it may hold the employee bound by the contractual notice, alternatively, it may accept the resignation, cancel the contract and thereafter claim damages.<\/p>\n Tristyn Naidoo and Sedayshum Naidu v Standard Bank and SBG Securities<\/strong><\/p>\n In the latest case of Tristyn Naidoo and Sedayshum Naidu v Standard Bank SA Ltd and SBG Securities (Pty) Ltd (Case No: J1177\/190)<\/em>, the employees were subjected to a disciplinary inquiry after certain allegations of misconduct were levelled against them.<\/p>\n However, before the disciplinary inquiry could be commenced with, the employees tendered their resignation with immediate effect.<\/p>\n The employer refused to accept their resignations and sought to hold the employees bound by the notice periods in their employment contracts, in light of the Coetzee judgement.<\/p>\n The employer intended to continue the disciplinary inquiry against the employees.<\/p>\n The employees thereafter approached the Labour Court on an urgent basis seeking an order preventing the employer from subjecting them to a disciplinary inquiry.<\/p>\n Current position\u00a0<\/strong><\/p>\n The court held that resignation with immediate effect terminates the employment relationship, thus an employee need not serve a notice period and the employer cannot pursue any disciplinary inquiry in these circumstances.<\/p>\n The court also found that an employer may approach a court for an order for specific performance if it wishes to hold an employee bound to the notice period.<\/p>\n “It is noteworthy to mention that the court, in coming to its decision, distinguished between the conflicting authority of Mtati and Coetzee and favoured the reasoning of the former judgement,” said Tom.<\/p>\n “It goes without saying that the above judgements from the same court bring about uncertainty and fluidity regarding the effect of resignation with immediate effect on a pending disciplinary enquiry.<\/p>\n “Until the Labour Appeal Court pronounces on this issue, it will remain a contentious debate at our Labour Court.”<\/p>\n
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