Employees who wish to resign with immediate effect, to avoid disciplinary action and possible dismissal, need to be aware that the latest Labour Appeal Court decision handed down has ruled that this termination by an employee does not absolve the employee from his/her misconduct and in terms of the BCEA the employer is entitled to pursue disciplinary charges against the employee. This may have serious ramifications for employees where their misconduct also amounts to criminal action, such as theft or fraud, and accordingly, the employer would be entitled to pursue not only civil action against the employee for failure to serve the notice period as contemplated in terms of the BCEA but also the employer may be entitled to deduct the amount so found to be owing by the employee to the employer as a consequence of his/her misconduct. This is over and above any criminal action, the employer wishes to institute.
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Standard Bank vs Chiloane
Case no: JA 85/18
Heard: 05 November 2020
The Labour Court was confronted with the issue of whether an employee can by a letter of resignation immediately end his/her relationship with his/her employer irrespective of the contractual or statutory provisions which provide for notice to be given before termination can take effect.
This judgment like the others on this issue raises the rights of employers and employees in respect of discipline where an employee resigns in the face of disciplinary charges.
Summary: Discipline—Right of employer to discipline an employee for misconduct within the employee’s notice period—Resignation with immediate effect having no effect when the disciplinary hearing takes place within the notice period.
Resignation—Resignation with immediate effect not terminating employment relationship when contract stipulates a notice period unless the other parties waive or do not seek to enforce it.
Resignation—In the absence of contractual stipulation of a notice period, Basic Condition of Employment Act taking effect.
Coram: Waglay JP, Coppin JA and Savage AJA
The Judgement can be downloaded from the link below.