“You’re Fired for Misconduct” v “No, I Resign” – Who Wins?

What can you do when an employee-gone-bad tries to frustrate your disciplinary proceedings by resigning?

Nothing, according to a 2016 Labour Court decision to the effect that an immediate resignation puts the (now ex-) employee beyond your reach.

Take heart though from a new Labour Court decision reversing that. We analyse the judgment and the loophole that has now been closed to employees facing disciplinary charges for misconduct. We’ll tell you also how to keep the transgressor on the hook long enough to be fired.

You want to charge one of your employees with serious misconduct so you institute disciplinary proceedings. To avoid a possible dismissal the employee resigns “with immediate effect”.

Can you go ahead with disciplining the employee? Until recently the answer was no, the Labour Court having decided in such a matter that immediate resignation brings an end to the employment relationship and puts the employee beyond your reach.

Employers will be relieved to know that a new Labour Court decision has reversed that.

Looking for a loophole

  • The Executive Director and Head Curator of an art museum was invited by his employer to “make written representations in respect of allegations of serious misconduct”.
  • He supposedly then resigned immediately and without notice, and asked the Labour Court to hold that his employer no longer had any jurisdiction to discipline him, and to interdict his employer from doing so.
  • The Court refused, holding instead that –
  • An employee’s contract of employment comes to an end only once his/her resignation takes effect at the end of the applicable notice period (four weeks in this case).
  • It is up to the employer whether or not to accept an immediate resignation, force the employee to serve the period of notice, cancel the contract and claim damages, reach another agreement, or waive all its rights.
  • On the facts, the employer in this case had not accepted the “tender of notice” as an immediate resignation, and so it still had the right to proceed with disciplining the employee before the end of the notice period.

The employee’s attempt to find a loophole having thus failed, he must now face his disciplinary hearing and presumably, if found guilty, the possibility of dismissal for misconduct.

The bottom line for employers

If you want to proceed with disciplinary action be careful to unequivocally reject any attempt at immediate resignation. Then move quickly before the end of the notice period terminates the employment contract. As always take proper legal advice on your particular matter – the complexities and pitfalls inherent in our labour laws make it very unwise not to do so.