May the employer, for example, proceed with disciplinary action against an employee who has resigned? Each case will depend on its particular facts, and it will be down to the employer to show that not suspendingthe disciplinary process to investigate a grievance was afair and reasonable thing to do. Taking this approach can be an appealing option for both parties. 2019 GOLEGAL ALL RIGHTS RESERVED | WEBSITE POWERED BY, The legal timing of a financial incentive in lieu of a resignation. Resignations and Disciplinary Hearings - Labour Guide South Africa No Water, No Work Must Employees Be Paid? Your password will be sent to this address. Please enter the email address that you used to register on Polity.org.za. Disciplinary Hearing Resignation Letters However, employers should be mindful of the fact that there are conflicting judgements on this matter. Accordingly, if an employee is obliged to serve a notice period in terms of a contract of employment, and he/she decides that he/she does not wish to do so, it will constitute a repudiation of his/her contract of employment. And to ensure that the employee leaves on good terms, the employer can offer to provide them with a reference. Advertising on Polity.org.za is an effective way to build and consolidate a company's profile among clients and prospective clients. Before an Employer makes a punitive or non-punitive decision based on the conduct of an Employee, a Disciplinary Hearing must be held to accurately determine the facts and merits of the charges leveled against and Employee and to allow the Employee to make representations by way of leading evidence, utilizing witnesses in their defence and cross examining the Employers witnesses, if any. The amount of notice will depend on a number of factors including the amount of evidence supplied, as you will need sufficient time to review this evidence and prepare your case before the hearing takes place. Pendoring Park, Ground Floor, Building no 5, 299 Pendoring Road, Blackheath, Randburg, 2195. A DISCIPLINARY HEARING When a staff member is not performing their duties to the required standard, an employer may feel as though there is no alternative but to terminate their employment. In the Labour Court case of Mtati v KPMG Services (Pty) Ltd (2017), the company was investigating allegations of serious misconduct against an employee. Pro advice. What if an employee resigns during disciplinary proceedings? The best practice would always be to give you a further chance to attend the hearing, although many employers regrettably do not follow what is considered to be best practice. An employee who resigns in order to avoid a disciplinary hearing from taking place must remember that upon tendering a letter of resignation, the contract of It insisted that Coetzee was required to give at least the statutory minimum of 4 weeks notice. If you are persistently unable or unwilling to attend a disciplinary meeting without good cause, the ACAS code says your employer may end up having to make a decision on the evidence available, and without you present. Hi Alex I mostly agree with CarolineI would however rather defend a cd case than a clear dismissal but I would also object to paying noticeYou could phone and tell them what you intend to do unless a differently worded resignation letter arrives asapIf not responsive then do what Caroline suggests and dismiss summarilyif they appeal and ask for the notice, you could always say yes subject to a compromise agreement, Nine strategies for solving hiring challenges, Why putting pressure on people is a good thing, Get ready for AI disruption with practical tools, Join HRZone in London to network and celebrate - 16 March, The World of Learning Summit at Olympia London - 28 February. WebTherefore, in order to avoid the disciplinary enquiry the employee will need to resign with immediate effect so that the employment relationship terminates immediately, which has Mining Law Always get it in writing from the employee. Banking & Finance Law By resigning with immediate effect, an employee is in breach of contract. In legal terms, We have vast experience in dealing with situations where you may be facing a disciplinary or dismissal, and have very high success rates. The two employees applied to the Labour Court to grant them an interdict which prohibited their employer from continuing with their disciplinary hearing after their resignation. You should be informed in writing of the appeal hearing result as soon as possible. The protection offered by this approach will only cover the employer when there is a genuine view to negotiating a settlement. The amount of investigation required will depend on the nature of the allegations and will vary from case to case. Use our website chat widget (bottom right corner of your screen). The employee approached the Labour Court on an urgent basis to obtain an interdict. A dismissal will not necessarily be unfair if your employer does not put the disciplinary proceedings on hold to deal with a grievance. @media(min-width:0px){#div-gpt-ad-resignationletters_biz-large-billboard-2-0-asloaded{max-width:125px!important;max-height:125px!important;}}if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[125,125],'resignationletters_biz-large-billboard-2','ezslot_3',131,'0','0'])};__ez_fad_position('div-gpt-ad-resignationletters_biz-large-billboard-2-0');report this adPregnancy. It is heartening that a return to strict principles of contract has prevailed. May the employer proceed with the hearing? if an employee resigns before Marchmouse Media Ltd - EmploymentSolicitor.com is not a firm of solicitors. [3] At the outset of the hearing, the appellants late filing of the notice of appeal was condoned. To advertise email [email protected] or click here, The Information Regulator has levied an administrative fine of ZAR 5 million on the Department of Justice for breaching POPIA. Once an employee has resigned, whether lawfully or otherwise, the resignation cannot be undone without the employers agreement. Health & Pharmaceutical Law Being asked to resign impacts you in a different way than being fired. In a previous case before the Labour Court, Mtati v KPMG Services (Pty) Ltd (2017), the judge granted an interdict against the employer who wanted to proceed with disciplinary action against an employee who had resigned with immediate effect. on the facts, the employer was prohibited from pursuing disciplinary action against the employees as they had resigned with immediate effect. : (01233) 653500 Fax: (01233) 647100, [email protected] www.indicator-flm.co.uk, Calgarth House, 39-41 Bank Street, Ashford, Kent TN23 1DQ, VAT GB 726 598 394 Registered in England Company Registration No. These protected conversations allow employers to negotiate exit packages without the risk of discussions being used against them in employment tribunal claims for an ordinary unfair dismissal. afforded a full and fair hearing. that purported to govern the members conduct after resignation of membership. Discipline and grievances after employment has ended If an employee resigns during disciplinary proceedings, or submits a grievance after their employment has Hopefully this is the final word on the law in this regard. A failure to do so could amount to an unfair dismissal. If she is then dismissed due to gross misconduct, this simply over-rides the resignation and the dismissal will be effective immediately with no entitlement to notice or pay in leiu of notice. You can no longer discipline an employee after a resignation! He also requested the court to declare any disciplinary steps that might have been taken after his immediate resignation null and void. The court dismissed Coetzees application. Should we suggest that they do not work their notice and pay them the remainder of the notice period? If you are dismissed during pregnancy or maternity leave, you have an automatic entitlement to a written statement without having to request it (regardless of your length of service). Mergers & Acquisitions Specifically, the DoJ had failed to renew its Security Incident and Event Monitoring (SIEM) Licence and antivirus licence since 2020. A failure to do so could amount to an unfair dismissal. Grievances that a former employee might raise include those about incorrect final salary payments, unsafe working practices or harassment, bullying or discrimination. Escape route: Resignation with immediate effect Instead, the termination of your employment is immediate and also without payment of notice (this is also known as summary dismissal). Construction & Engineering Law This is so you can raise an appeal if you feel: Secondly, in such a case where an employee resigns with immediate effect he/she will not have to serve his/her notice period and resignation will be effective immediately. The Information Regulator issued an Enforcement Notice to the DoJ. At the disciplinary hearing the employee raised the point that the chairperson did not have jurisdiction to continue with disciplinary proceedings, as she had resigned. Where the grievance and disciplinary issues are related, however, it may be appropriate to deal with both issues concurrently, and many employers opt for this to save time. But what happens if the employee resigns in the face of a pending disciplinary process? Or if the matter is particularly contentious, a small severance payment could be offered as compensation for the employee, whilst keeping things commercially beneficial for the employer. ContractLaw Appeals should be heard without unreasonable delay, and should be dealt with impartially by a manager who has not previously been involved in the matter. If the employee rejects the opportunity to agree a mutual termination, nothing is lost as far as the employer is concerned, since the conversation cannot be The employer informed the employee that the disciplinary action would continue notwithstanding her resignation. If the employee has already left your employment, a finding at a disciplinary hearing that you would have dismissed them has little practical effect and wont change the original reason for termination of employment. There is no legal requirement by your employer to disclose the identity of witnesses. Resignation A judgement of the Labour Court in Cape Town has brought about much needed clarity. It may involve interviewing and taking statements from you and any witnesses, and/or reviewing relevant documents. Social Media Law The first respondent did not oppose the condonation application. No charge. We set out below some background to the various Labour Courts decisions to date. In some circumstances, the employer may want to give the employee the opportunity to hand in their resignation, rather than have their employment terminated. But in a recent case the Labour Court expressed a different view. By following the disciplinary procedure through to the end you have complied with your legal obligations and minimised the risk to yourself. We disagree with the judgement in the Standard Bank matter for the reasons discussed in a previous article. Different people should carry out the investigation and the disciplinary hearing. Should it be determined that they have committed gross misconduct, you then possess the ability to override any resignation the employee might have given by dismissing them without notice. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); This site uses Akismet to reduce spam. a trade union official employed by the union; a trade union official who is certified in writing by the union as having the necessary experience or training to act as a companion. According to the employer it never agreed to Coetzee resigning with immediate effect, nor did the employer waive its right to notice. In this case the claimant resigned after his case was heard by the disciplinary committee but before they could give their final verdict. That said, as you also owe a duty of care to the reference subject, its advisable not to allude to their perceived misconduct in the reference unless youve already carried out a reasonable investigation and you have a genuine belief in their guilt which is based on reasonable grounds. WebThe hearing should be held as soon as possible after the investigation, while giving reasonable time for the employee to prepare. Please click here to go to the unfair dismissal page which sets out the exceptions. The law does not state what is considered to be reasonable, but usually at least a few days is expected and sometimes up to a week will be appropriate. In cases which involve discriminatory elements, for example the employee believes they are doing a good job and claims they are being treated differently due to their gender, employers should proceed with the utmost caution. Many employees try to avoid their fate of dismissal by resigning with immediate effect. However, your companion has no right to answer questions on your behalf, to address the hearing if you do not wish him or her to do so, or to prevent your employer explaining its case. F: 086 510 6417 At the meeting, your employer should explain the reason for the disciplinary (such as misconduct or performance) and go through the evidence. complies with the notice requirements of the employees contract or, in the absence of that, the provisions of the Basic Conditions of Employment Act (the BCEA) see the box below. The employer informed the employees that their resignations were rejected and that the disciplinary proceedings would proceed, effectively holding them to their notice periods. Theres no explicit requirement in the Acas Code of Practice on Disciplinary and Grievance Procedures to follow a grievance procedure in relation to a grievance raised by a former employee. In the event that an agreement is reached, this should ideally be drawn up in a Settlement Agreement so that the employer is protected against any claims that the employee may try to make at a later date. Employers therefore need not hesitate to proceed with a disciplinary enquiry which may lead to the dismissal of an employee where the employee attempts to resign with immediate effect and where the employer has not accepted such resignation. Disciplinary action after resignation with immediate effect. In this matter, two employees resigned with immediate effect pending disciplinary action but the employer (following Coetzee) continued with the disciplinary hearing. Attorneys on 010109 0941. This resulted in an agreed statement in which the employer announced to the press that an enquiry into Mr Coetzees professional conduct has been initiated by the trustees. It may be possible though for you to disclose in a reference the fact that disciplinary proceedings were pending at the time of employment termination, in accordance with your duty to the reference recipient to take reasonable care to ensure the information provided is true, accurate, fair and not misleading. This field is for validation purposes and should be left unchanged. Yes, in some circumstances it may be best to resign first.Please click here to access the gross misconduct pagewhere this is issue is fully explored. We offer a variety of subscriptions to our Magazine, Website, PDF Reports and our photo library. However, an employment tribunal will definitely take the Code into account. Contact Form, Disciplinary action after resignation with immediate effect, https://www.labourwise.co.za/labour-articles/disciplinary-action-resignation, EXTENSION FOR ZIMBABWEAN WORKERS IN SOUTH AFRICA, VISA REPRIEVE FOR FOREIGN NATIONALS IN SOUTH AFRICA, NEW EARNINGS THRESHOLD AS FROM 1 MARCH 2023. The employer has a choice: Firstly, it may hold the employee to the contractual notice period. You have discovered 5 articles for free in the domain "-". Once notified of the resignation, the employer sought to hold the employee to serve his 30 day notice period, as stipulated in his contract of employment. WebThe employer is entitled to proceed with the disciplinary hearing even if the employee has resigned. Is an employee able to avoid a disciplinary action by resigning? IMPORTANT NOTE/UPDATE: Unfortunately the Labour Court in Johannesburg has more recently (in the matter of Naidoo and another v Standard Bank SA Ltd and another (J1177/19) [2019] ZALCJHB 168) come to a different conclusion to the Labour Court in Cape Town (Coetzee- judgement). May the employer proceed with the hearing? Wills, Estates & Trusts, Home Latest Labour Law Resigning to avoid disciplinary action is not the answer. If applicable, confirm that you will still be investigating their allegations and may contact them again if you need them to assist further in that investigation, which may include subsequently inviting them to attend an informal meeting. In this case, two employees were charged with gross misconduct and dishonesty. Firstly, whether an employees resignation with immediate effect brings the employment relationship to an end. EMAILTHISARTICLE. Blacks Solicitors LLP is a firm of solicitors authorised and regulated by the Solicitors Regulation Authorityno. The employee approached the Labour Court for relief, claiming that the employer did not have jurisdiction to dismiss her as she had resigned with immediate effect. Disciplinary Even where a verbal warning is given after a disciplinary meeting, your employer still needs to confirm this in writing- and yes, it is something to get your head round for a verbal warning needing to be set out in writing. You may find that you do not have this option because you do not have the minimum period of membership of that union. Resigning to avoid disciplinary action is not the answer - GoLegal We are happy to accept her resignation for the sake of her going with a 'clean record' so to speak. You will receive a new password via e-mail. The contract of employment requires the parties to give notice of termination of employment. A failure to follow it will not therefore always result in an automatic penalty for either the employer or employee. Employees therefore cannot escape the consequences of their actions by resigning with immediate effect. However, it is recognised that more complex or difficult cases (for example, where fraud or a criminal offence is alleged) will inevitably take longer. In most cases, theres little benefit in continuing with disciplinary proceedings once an employee has left employment, so simply discontinue them. Employers and employees should act consistently. The case Kennedy Obala Oaga v Kenya Ports Authority [2018] eKLR further affirmed this position and held that the employer could not deliver a lawful verdict arising Although there is no statutory right to be accompanied by a trade union official or work colleague at a formal investigatory meeting, thismay be allowed under your employers own disciplinary process. The court continued that the election to cancel lies with the aggrieved party and not the aggressor. If you need any assistance with a Disciplinary Hearing, kindly contact CGG INC. Minor conduct issues can often be resolved informally between you and your employer. Although we disagree with the reasoning and outcome in the Mtati-judgement, employers should consider themselves bound by it at least until another court comes to a different conclusion. What happens if a disciplinary procedure concludes during the notice period? For the employer, it would save valuable management time which would be spent dealing with a disciplinary process. ByKaren Bexley, head of employment law at MLP Law. A failure by your employer to follow the Code can alsoallow tribunals to adjust an increase in any award of damages by up to 25%. Quantifying compensation for unfair dismissal, Objection to con/arb!, Overruled!, Slamming the shams: Section 197 transfers as a going concern, Nowhere to run or hide: Directors can be held personally liable for employee dismissals, Promote Legal Conferences, Events and Seminars. separate emails by commas, maximum limit of 4 addresses, Disciplining an employee after resignation, ARTICLE ENQUIRY resume templates and We are a boutique law firm specialising in: Labour/Employment Law; Insurance & Motor Vehicle Collisions; Civil Litigation (including High Court and Magistrates Court) and Criminal Law.