“We’re investigating a number of employees in our company over the last few months and identified serious transgressions warranting disciplinary action. We instructed human resources to issue disciplinary notices to the relevant employees, following receipt of which three of the employees resigned with immediate effect. Despite their resignations, can or should we still proceed with disciplinary action against these employees now that they have resigned?”
If an employee resigns from the employ of his employer, then the employer may not proceed to discipline that employee after the resignation has taken effect. This is because, once the resignation has taken effect, the employee is no longer an employee of that employer and that employer has no authority or power over the employee. That said, until the employee departs at the end of his/her notice period, a disciplinary hearing may still be instituted and finalised during the employee’s notice period.
But what happens if the employee resigns with immediate effect?
To answer this, one must first look at the wording of the resignation letter to determine whether the resignation is with immediate effect or whether the employee intends to serve a notice period. The notice period could be a period agreed upon by both parties by virtue of the provisions of an employment contract, or in the absence of an employment contract, in terms of the statutory requirements outlined in the Basic Conditions of Employment Act 75 of 1997. In this instance the employee agrees to be contractually bound to give a resignation notice as stated in the employment contract. Or, the resignation can be with immediate effect where the employee, despite any applicable notice periods, resigns immediately. This essentially means the employee does not intend to serve any period of notice applicable and is essentially acting in breach of their contract of employment.
So what is the position in the latter instance? There are some conflicting views in this regard, but in the recent case of Naidoo and Another v Standard Bank SA Ltd and Another the Labour Court held that an employer does not have power to discipline an employee following a resignation with immediate effect. The only way that the employer can achieve this is for the employer to approach a court to obtain an order for specific performance. The specific performance order will enable the employer to hold the employee to the terms of the contract in respect of the notice period and to during this notice period proceed with the disciplinary action against the employee.
Therefore, you as employer cannot proceed with a disciplinary hearing against an employee who has resigned with immediate effect unless an order of specific performance is obtained from a court. Then your employees can be obliged to serve their notice period agreed upon and so enable you to proceed with the disciplinary hearing during the notice period should you wish to do so.