resignation to avoid a disciplinary hearing

Resignation to avoid a disciplinary hearing

Employees often decide to submit a summary resignation to avoid a disciplinary hearing, giving rise to the question whether it is permissible for the employer to continue with the hearing despite the employee’s resignation.

The issue formed the subject of a recent Labour Court judgment in Mthimkhulu v Standard Bank. The employee in that case was employed by Standard Bank, and he decided to summmarily resign mid-way through disciplinary proceedings to avoid being dismissed which would affect his future career prospects.

The bank decided to continue with the disciplinary proceedings despite the resignation, and the employee claimed that the continuing disciplinary proceedings were invalid.

The Labour Court found that the employer was entitled to continue with the disciplinary proceedings because the employee was required to give the employer notice of termination of employment, and that the summary resignation was a breach of contract an a “repudiation”. It found that the employer was therefore permitted to hold the employee to the employment contract including the notice period therein, and to continue with the disciplinary proceedings to test the allegations of misconduct.

There was previously a line of thinking that the employer had to approach a court for an order requiring the employee to comply with his notice period (referred to as “specific performance”) in order to hold the employee to the contract and continue with disciplinary proceedings. However, the court in Mthimkhulu v Standard Bank found that this was not necessary. It found that the summary resignation did not bring the employment contract to an end, and that the employer was entitled to either accept or reject the breach of contract without having to approach the court.

As a result of this judgment, it has become more difficult for employees to submit tactical resignations and attemp to use a summary resignation to avoid a disciplinary hearing.

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