RESIGNATION & DISCIPLINE: Can an employer proceed with a disciplinary enquiry after an employee resigns with immediate effect on receipt of a notice of suspension or notice of enquiry?
No & Yes
“No” – said the Labour Court in Kalipa Mtati v KPMG Servicesin October 2016 .
“Yes” – said the court later in Coetzee v Zeitzon 14 June 2018.
Coetzee resigned “with immediate effect” when his employer The Zeitz Trust served him with a notice of suspension on allegations of serious misconduct. Coetzee disputed the Trust’s right to continue with the disciplinary process against him.
He made an urgent application to the Labour Court to have the disciplinary process declared unlawful, invalid and of no force and effect. And he attempted to interdict the Trust from continuing and finalising the disciplinary process against him. He based his case on the decision in Kalipa Mtata
The court said it was not legally obliged to follow the Kalipa Mtatijudgment. And it explained why it would not for the sake of ‘clarity of the legal position’. It referred to what it considered to be the correct reflection of the law as stated in the LC judgment in Vodacom v Motsaand Another 2016(3) SA 116 (LC) that stated in the following extract –
“The principles that regulate a resignation are well established. Resignation is a unilateral act…. When an employee gives the required notice, the contract terminates at the end of the notice period. When an employee leaves his or her employment without giving the required period of notice, the employee breaches the contract.
Ordinary contractual rules dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice….”
Employers can reject “immediate effect”
This means the employer can hold the employee to the contractual notice period and reject the “immediate effect” condition of the resignation. It includes the employer’s entitlement to proceed with the enquiry despite the resignation to the “immediate effect”. An employee is entitled to resign with immediate effect only in the case of a material breach of contract by the employer.
The judgment is in line with the principles stated by the LC in Lottering–
- Resignations must be unequivocal (ie leaving no doubt);
- Once given, they can’t be withdrawn unless by agreement;
- They don’t require acceptance by the employer- it’s a unilateral act;
- The contract does not terminate on the date the notice is given but when the notice period expires; and
- If the employer waives a part of the notice, the contract terminates when the employee leaves work (ie at the start of the waived period).
TIP: The message from the Coetzee judgement is clear: An employee cannot escape workplace justice simply by resigning with immediate effect when faced with the prospect of being held to account for misconduct. Employers should proceed with disciplinary enquiries in these cases to maintain the credibility of its workplace rules and procedures.
Kalipa Mtati v KPMG Services (Pty) Ltd J2277/16; 18 October 2016
Coetzee v Zeitz Mocaa Foundation Trust and Another (C517/2018)  ZALCCT 20; (2018) 39 ILJ 2529 (LC) (14 June 2018)
Vodacom (Pty) Ltd v Motsa and Another 2016(3) SA 116 (LC)
Source: Worklaw Newsflash April 2019
Lottering & Others v Stellenbosch Municipality (LC Case no.: C159/2010 Date of judgment: 7 May 2010)
Source: Deale Attorneys