A recent Labour Court case has brought about more uncertainty as to whether an employee can quit before being fired.

According to Michael Yeates, director at Cliffe Dekker Hofmeyr, the case dealt with Standard Bank employees who resigned with immediate effect to avoid disciplinary action.

“Delivered on 24 May 2019, 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,” he said.

“The correct way to proceed, according to the court, is to hold the employee to his or her contract by seeking an order for specific performance.”

The Coetzee judgment

Yeates said that the ruling in the Standard Bank matter goes directly against the decision in Coetzee v Zeitz MOCCA Foundation Trust and Others where the Labour Court held that an employer may proceed with a disciplinary hearing even where the employee has resigned.

“The court in Coetzee emphasised that resignation with immediate effect is only permissible where there is a preceding material breach of contract by the employer or where the employer accepts the resignation with immediate effect,” he said.

“The court further held that statutorily and contractually, an employee is bound to give at least four weeks’ notice of his or her resignation and that there is no legal impediment to the prosecution of disciplinary proceedings and subsequent dismissal during an employee’s notice period.

“What the judgment in Coetzee ultimately says, is that an employee’s employment contract only comes to an end through resignation and at the end of the notice period,” he said.

The Standard Bank judgment and uncertainty

Despite the Coetzee finding, the more recent Standard Bank case appears to have flipped the script, according to Yeates.

Upon receipt of the employees’ resignation with immediate effect, the employer responded by stating that it did not accept the resignations and sought to hold them to their notice periods, he said.

The employees then approached the court on an urgent basis.

“The court in Standard Bank then went on to state that there is no legal basis for an approach whereby an employer may proceed with a disciplinary hearing without first approaching the court for an order for specific performance,” said Yeates.

“The position on whether an employer may continue disciplining an employee post-resignation with immediate effect is at this point uncertain considering the conflicting judgments discussed above,” the legal expert said.

“However, if following the latest case law, the position is that an employer may not discipline employees post-resignation with immediate effect,” said Yeates.

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, he said.


Source: www.businesstech.co.za