Often when an employee is required to face a disciplinary hearing that might result in dismissal, that employee elects to resign rather than to face the allegations at the hearing.
It frequently happens that in instances where the employer feels strongly about the alleged misconduct, it rejects the resignation and continues with a disciplinary hearing. In those instances the employer simply ignores two very important principles:
- A resignation is a unilateral act by an employee – it terminates the employment contract with or without notice, and does not depend on whether the employer accepts the resignation or not;
- The employer cannot discipline an employee who is no longer in its employ – that much was again made clear in the matter of Kalipa v KPMG Services (Pty) Ltd (J2277/16)  ZALCJHB 403.
In this matter the employee resigned, with notice when the employer informed her that it was conducting an investigation into her alleged misconduct. When this didn’t stop the employer’s resolve to convene a disciplinary hearing, the employee submitted a second resignation – this time “with immediate effect”.
Despite the fact that the employee had resigned “with immediate effect”; told the chairperson that the hearing could therefore not proceed; and turned to the Labour Court to interdict the employer from proceeding with the hearing, the chairperson continued with the hearing, found the employee guilty, and imposed a sanction of dismissal.
The Labour Court, per Molahlehi J, found that the employer could not rely on the first letter of resignation as the second had overtaken it – the second letter of resignation terminated the employment contract “with immediate effect”.
For authority the court relied on para 142 of the minority judgment written by Zondo J in the matter of Toyota SA v Commission for Conciliation, Mediation & Arbitration &others, (2016) 37 ILJ 313 (CC):
‘ Another context of resignation is the normal resignation. Where an employee resigns from the employ of his employer and does so voluntarily, the employer may not discipline that employee after the resignation has taken effect. That is because, once the resignation has taken effect, the employee is no longer an employee of that employer and that employer does not have jurisdiction over the employee anymore.’ (Emphasis added)
The importance of this judgment
While an employer can proceed with a hearing following a resignation provided the hearing takes place during the notice period, this judgment makes it clear that it would be pointless to proceed with a hearing after an employee has resigned “with immediate effect” as the findings would be a nullity in the absence of a valid contract of employment.
Written by Hilda Grobler