The question is often raised regarding the resignation of an employee who is facing disciplinary action, or who resigns before, during or after the disciplinary hearing. The question usually hinges around two issues – does the employee have the right to resign, and if so, can he still refer a dispute of unfair dismissal to the CCMA after such resignation?

To answer the first part of the question, the employee does have the right to resign – he can tender such resignation at any time, always provided, of course, that his resignation does not place him in breach of contract in some way.

Employees also sometimes resign in the face of disciplinary action – i.e., before the hearing is concluded, and are they then go to the CCMA alleging constructive dismissal? Other employees resign during the proceedings, and then some resign after the verdict and finding has been handed down.

What then is the situation ? Does the employee have the right to resign as above and then refer a dispute to the CCMA? Put differently, what effect does such a resignation have on the employee’s right to litigate?This question was addressed in Kynoch Fertilizers Limited v Webster [1998] 1 BLLR 27 (LAC)

The employee in this case had been found guilty of dishonesty at a disciplinary hearing, and was dismissed. The matter was originally referred to the Industrial Court, who found that the dismissal was unfair and the employer referred the matter to the Labour Appeal Court,

This court found that the resignation by the employee, and its acceptance by the employer, amounted to a settlement. Therefore, whatever rights had accrued to the employee by virtue of his dismissal had been negated.

The court held that the employee had made an informed choice between litigation and securing an unblemished reference. Having made this choice he was not entitled to seek relief by way of reinstatement or compensation.

The court held further that in writing his letter of resignation, it was obvious that he intended to resign, and the employer accepted his offer to resign. Therefore there was a mutually agreed termination of the contract of employment.

The court held that the respondent made an informed choice between litigating about a dismissal which he considered to be unfair, and the immediate benefit of being able to secure an unblemished reference with which to set about looking for a new job. Having made his choice, he cannot later claim to be entitled to both.

I have no doubt that employees will continue to submit resignations under similar circumstances, but the above should give employers a good guide as to how to respond to such referrals.

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Resignation before Disciplinary action

It seems to be an increasingly frequent occurrence that, when an employee is faced with disciplinary action for an act of misconduct, the employee elects to resign from the employment before the disciplinary hearing takes place. In some instances, it has been known that the employee resigns, and then refers a dispute of constructive dismissal to the CCMA.

The constructive dismissal dispute is usually based on allegations by the employee that they are innocent of the charges, and cannot accept being treated like a criminal by the employer, that they have been defamed, and therefore had no option but to resign. Constructive dismissal disputes of that nature will not succeed. In other instances, employees resigned because they feel that a resignation ” looks better on my record” than does a dismissal.

The question is, what are the options of the employer when the employee does resign when faced with disciplinary action? Obviously, the employer has concluded that an act of misconduct has occurred, he has hopefully investigated the matter fully, and has decided that the disciplinary action is called for.

These resignations by the employee are seldom in the face of a minor matter – it is usually a serious charge, such as theft or fraud, unauthorised possession of company property, absence without leave (perhaps not for the first time), extreme insubordination or something of a serious nature. In other words, an offense of such gravity that dismissal is likely to result.

There are no hard and fast rules laid down in labour legislation regulating such matters. The Basic Conditions of Employment Act contains no provisions that prevents an employee from resigning when faced with disciplinary action, and similarly the Act contains no provision giving employers the power to refuse to accept a resignation.

Employees usually resign because they think that the resignation will make the allegations disappear, and  that the employer can prove nothing. Employees who resign, and subsequently failed to appear at the disciplinary hearing, must remember that it is then construed that the employee has waived their right to present a defence against the charges. The employee then cannot afterwards go to the CCMA, complaining that they were dismissed without being given the opportunity to present a defence.

The downside for the employee is that the employer, upon receiving the letter of resignation, immediately concludes that the employee is guilty. Employees should remember that the employer has, by this time, gathered sufficient evidence that leads him to believe that the employee is guilty. Until such time as the employee can dispute that evidence, or put forward a justifiable defence to the charges, the employer will continue to believe, based on evidence that he has,  that the employee is guilty.

If the employee resigns from the employment, and does not appear at the disciplinary hearing, there is only one possible outcome. The hearing will continue in the absence of the employee, and based on the evidence placed before him, the Chairperson will arrive at the verdict of guilty.

The employer is fully entitled to proceed with the disciplinary hearing even if the employee has resigned. Employees must remember that when they tend a letter of resignation, it is not a resignation that terminates the contract immediately upon handing the resignation letter to the employer.

The employee is required to provide the employer with the contractual period of notice – this may be, for example, one month. Therefore, the letter of resignation in fact uniforms the employer of the employees intention to terminate the employment contract on a future date, one month hence.

The employee remains in the employ of the employer until that date is reached – and therefore the employer can still go ahead with the disciplinary proceedings, because the employee is still employed by the employer.

Thus, a resignation by an employee when faced with disciplinary action does not necessarily  “look better on the employee’s record,”  because the employee’s record will still contain details of the alleged offences, details of the disciplinary hearing held in absentia, and the outcome of the disciplinary hearing.

It is, of course, a decision to be made by the employer. There are many employers who have better things to do with their time than pursue such a matter in the face of a resignation from the employee, and they simply drop it and get on with the task of running their business.

Employees should also remember that, in the face of allegations involving a criminal element, such as theft or fraud, or perhaps assault, the employer is still entitled to proceed with criminal charges, despite the fact that the employee may have tended a resignation.