4. In the matter of Chiloane v Standard Bank of SA Ltd, the Labour Court held that once Ms Chiloane had handed in her resignation indicating that the resignation was with immediate effect, the employment relationship came to an immediate end and her dismissal pursuant to a disciplinary hearing held thereafter was null and void. This should therefore reflect the real reason for dismissal - particularly given the nature of the offence. The Labour Court had to determine the question of whether a disciplinary process can continue once an employee has resigned in, In determining the matter, the Labour Court relied on the minority judgment of the Constitutional Court in. 3. Regarding employees who resign to avoid disciplinary actions in the face of serious allegations of criminal nature such as theft, fraud or unauthorised possession of company property, the employer may elect to pursue a criminal case against them. Case causes confusion. This should be done in writing and should include: The employee should have this information in time to prepare for a disciplinary 'hearing'. In the Labour Court, KPMG argued that it had accepted Ms Mtatis first resignation letter in which she ended the employment relationship while agreeing to work her notice period in line with her employment contract. Unsolicited emails and other information sent to Dentons will not be considered confidential, may be disclosed to others, may not receive a response, and do not create a lawyer-client relationship. I know theres more to come and I still feel so confused but Thank you. They do this in the hope of evading the disciplinary hearing and its possible consequences. Why could dismissing sick employees be dangerous? The courts in Nigeria have held that the consequence of resignation with immediate effect is that the employee will forfeit all benefits under the contract of employment as the resignation was in breach of the contract of employment. Hi Alex I mostly agree with CarolineI would however rather defend a cd case than a clear dismissal but I would also object to paying noticeYou could phone and tell them what you intend to do unless a differently worded resignation letter arrives asapIf not responsive then do what Caroline suggests and dismiss summarilyif they appeal and ask for the notice, you could always say yes subject to a compromise agreement, Nine strategies for solving hiring challenges, Employee-owned cultures: Power to your people, Evolving Leaders Series: A summer of learning, Join HRZone in London to network and celebrate - 16 March, The World of Learning Summit at Olympia London - 28 February. We are happy to accept her resignation for the sake of her going with a 'clean record' so to speak. The upshot is that if the employer proceeds and determines the matter post-employment, that decision is null and void. Employees hope that by doing so, they can avoid the consequences of being dismissed for misconduct and thus extricate themselves from a blemished disciplinary record that may . We advise that this approach is illegal and unlawful. The employee has no right to refer the dispute to the CCMA alleging that it was unfair. If an employee resigns and gives notice the employer is entitled to convene a disciplinary hearing during the notice period. We cannot respond to questions sent through this form. Delivering informative employment law content and helping you to secure expert advice from recommended employment solicitors. Ask for a resignation letter. If the hearing is concluded before the notice period ends and the employee is found guilty and dismissed, the reason for the termination of employment would be dismissal and not resignation. In other words, a resignation not in compliance with either the contractual or statutory notice period will not constitute a valid unilateral termination of the employment relationship. 2. The employee has an absolute and unfettered right to resign, and this right can be exercised at any point in the course of his employment. Resignation before Dismissal After Disciplinary Hearing Disgruntled employees, who tender their resignation to avoid disciplinary action, often refer constructive dismissal disputes to their respective bargaining councils or the Commission for Conciliation, Mediation and Arbitration ( CCMA ). This article provides more information. To this end, resignation with immediate effect after resignation on notice does not oust the jurisdiction of the employer to pursue disciplinary proceedings against the employee. An employee who resigns and then wishes to revoke the resignation cannot do so unless the employer agrees to this. Ms Mtati then resigned for a second time, but with immediate effect. When expanded it provides a list of search options that will switch the search inputs to match the current selection. Their knowledge of law is always informed by the latest legal developments. We also use third-party cookies that help us analyze and understand how you use this website. This essentially enables employers to have off the record conversations with employees who are at risk of dismissal. The employer in this case had not accepted the repudiation; on the contrary, it had instructed Ms Chiloane to serve out her notice period, albeit remaining at home on suspension pending a disciplinary hearing set to take place within the notice period. Although caution should be exercised as these discussions could be used as evidence at tribunal for other claims, such as discrimination or whistle-blowing. It is a well-established principle that resignation is a unilateral act that does not require the acceptance of an employer. They can only do this if they have worked for the organisation for 2 years or more. It can be on notice or with immediate effect. Or get in touch with us on our website Contact | PAGDENS | Law Firm In Port Elizabeth. Leaders need to become highly skilled in how to use their power. No. Dealing with resignations during disciplinary processes Your IP: On the other hand, the employer has the right to institute disciplinary action against any person in his employ, if circumstances justify it. It would then be up to the employee to prove that the employer had made it intolerable to continue working for them. September 22, 2022. Group: HR Policies: Created: 2015-07-02 10:43 CDT: Updated: 2019-04-05 10:59 CDT . RESIGNATION IN THE FACE OF A DISCIPLINARY INQUIRY - Bowmans There is little point continuing a disciplinary procedure in respect of an employee who is no longer employed, as no disciplinary sanction can be imposed against a former employee. Resignation takes effect . There are several actions that could trigger this block including submitting a certain word or phrase, a SQL command or malformed data. Read More, Copyright 2022 Consolidated Employers' Organisation | Ref. Although the Acas Code is not the law, if a disciplinary case reaches an employment tribunal, judges will take into consideration whether the employer has followed the Acas Code in a fair way. The Acas Code mainly applies to those with employee employment status. To avoid accusations of unfair treatment, employers should follow the procedure and policy in the same way for each disciplinary case. Therefore, an employer can pursue disciplinary action against the employee. When does the employees resignation take effect and does the employer retain the right to continue with a disciplinary action against the employee? This cookie is set by GDPR Cookie Consent plugin. The judge accepted that employers may discipline and dismiss employees during the notice period in the event of a resignation as such persons remain employees of the employer. Step 4: The disciplinary hearing: Disciplinary procedure: step When an employee resigns in the face of disciplinary action Eastern Cape, The resignation ends the employment relationship immediately. Dispute Resolution Official Port Elizabeth, In the same manner in which unions represent employees, employers need a professional and expert-driven organisation to represent them in CCMA and Bargaining Council matters, which form part of the modern-day labour environment. The employer should try and talk through any concerns . accept the employee's repudiation by accepting the resignation 'with immediate effect' (without proper notice); or. In addition, you may face problems if a similar situation arises in the future but next time you chose to continue as it's a less favoured employee - you need to be consistent as this could make future action unfair or even discriminatory. MsMtati argued that once the relationship was ended by her resignation, KPMG did not have the right to discipline her. Resignation after disciplinary action These questions were highlighted in a Labour Court case between KPMG and an employee, Ms Mtati, who had resigned while facing a disciplinary action. This button displays the currently selected search type. In the event that an agreement is reached, this should ideally be drawn up in a Settlement Agreement so that the employer is protected against any claims that the employee may try to make at a later date. {{ getActiveCase(headerData.languageLinks,'active',true).languageCode | uppercase}}, {{ getActiveCase(headerData.languageLinks,'active',true).name}}, Legal Effect of an Employees Resignation in Anticipation of Disciplinary Proceedings, See section 34(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 which provides that: no person shall be required to perform forced or compulsory labour. The employee remains an employee of the employer until his notice period expires and therefore the employer can still go ahead with the disciplinary proceedings. Creating an Environment of, If you have a question or would like to get in touch with us, contact us on +27 11 888 8914 or info@hrfuture.net. I consent to Pagdens having / saving my personal details. The most important aspect to bear in mind is that this approach should not be used for dealing with anything other than ordinary dismissal situations. If the hearing is not concluded before the end of the notice period the employer will lose the right to discipline the employee when the employment relationship terminates. The employee could potentially claim constructive dismissal (eg; by claiming they were pushed out and forced to resign). Disciplinary procedure: step by step Always contact an attorney for specific and detailed advice. When a staff member is not performing their duties to the required standard, an employer may feel as though there is no alternative but to terminate their employment. resignation before disciplinary action An employee who resigns in order to avoid the disciplinary hearing into his misconduct from taking place must remember that upon tendering a letter of resignation, the contract of employment is not immediately terminated upon handing the resignation letter to the employer, as the employee will have to . These cookies ensure basic functionalities and security features of the website, anonymously. Basically, to unilaterally withdraw the resignation on notice and replace with resignation with immediate effect. You need a resignation in writing so you can add it to the employee's personnel file. Pagdens and specifically past commercial director Jean Opperman has given our company the very best legal support and advice over the last five years. There is little point continuing a disciplinary procedure in respect of an employee who is no longer employed, as no disciplinary sanction can be imposed against a former employee. What happens with resignation and disciplinary hearings Contact us today for more information about our Employment Law, Health & Safety, and HR services. The employee will have to provide the employer with notice of their intention to resign. She is tenacious and ensures that issues are sorted out as simply as possibly. In the Chiloane matter, the parties had contractually agreed to give each other four weeks notice of termination. The aim is always to obtain the best commercial result. KPMG decided to continue with the disciplinary process and invited Ms Mtati to make representations to the chairperson of the disciplinary hearing. We have been instructing Pagdens since 2014. After an investigation and evidence to support the allegation we have decided to dismiss on the grounds of gross misconduct. 2023 Adepetun Caxton-Martins Agbor & Segun. To proceed, please click Accept. Call today to speak to an employment law solicitor. Is it better to quit than to be fired? Resignation by an employee This article is for general information should not be used or relied on as legal or other professional advice. The innocent party has an election of whether to accept the repudiation, terminate the contract and claim damages, or reject the repudiation and hold the other party to the contract. This cookie is set by GDPR Cookie Consent plugin. The employee does have the right to resign and terminate his employment relationship with his employer as long as such resignation does not constitute a breach of the contract of employment. She was then handed a charge sheet and informed that a disciplinary hearing would start during her notice period. And to ensure that the employee leaves on good terms, the employer can offer to provide them with a reference. The legal question is, how should an employer deal with or react to the resignation by an employee during or in anticipation of disciplinary proceedings? Employee Resignation During Disciplinary Process - WorkNest However, where the employee is given the notice to attend the disciplinary proceedings but fails, the employer is entitled to interpret such non-attendance as a waiver of the employee's right to be present and mount a defence. This short note will provide clarity on what an employer should do when faced with an employee who resigns with immediate effect before the disciplinary hearing, thanks to a recent decision of the Labour Appeal Court (LAC). In some instances, it has been known that the employee resigns, and then . In cases which involve discriminatory elements, for example the employee believes they are doing a good job and claims they are being treated differently due to their gender, employers should proceed with the utmost caution. However the employee has sent a letter fo resignation in giving 4 weeks notice. The resignation takes effect when the period expires. Quest Petroleum operates within the energy sector and more particularly, within the petroleum industry. They do this in the hope of evading the disciplinary hearing and its possible consequences. If an employee wants to avoid disciplinary action, they will have to resign with immediate effect in order to terminate the employment relationship immediately. Therefore, in order to avoid the disciplinary enquiry the employee will need to resign with immediate effect so that the employment relationship terminates immediately which has the effect that the employer may not hold a disciplinary hearing because the employee is no longer an employee of the employer. It is a right available to the employee and does not require the acceptance of the employer. 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 as decided in Naidoo and Another vs Standard Bank SA Ltd and SBG Securities (Pty) Ltd (Case No:J1177/190 [Delivered 24 May 2019]. We use cookies to help provide a better website experience for you, as well as to understand how people use our website and to provide relevant advertising. [ G.R. Find out more about dealing with workplace grievances. I cannot recommend Pagdens highly enough. This website uses cookies to improve your experience while you navigate through the website. This cookie is set by GDPR Cookie Consent plugin. By following the disciplinary procedure through to the end you have complied with your legal obligations and minimised the risk to yourself. Accepting the second resignation is a mandatory requirement because it has the effect of withdrawing the earlier resignation on notice. Step 5: Deciding on the disciplinary outcome, Acas Code of Practice on disciplinary and grievance procedures, Acas training on discipline and grievance, Acas guide to discipline and grievances at work, sufficient information about the alleged misconduct or poor performance, possible consequences, for example a written warning, further action, for example the employee raising a grievance, existing mental health issues getting worse. The action you just performed triggered the security solution. Just reading this has really helped, my mind is all over the place at the moment and Ive done nothing but cry for weeks.
