Many times, an Employer finds out about misconduct or a series of activities being done by the Employee that forces them to discipline the Employee in terms of their disciplinary code.
Yes, there is a chance that the accusation might be inaccurate, but in most cases, it is not.
In today’s article, we’ll discuss:
This will help both Employees and Employers.
Employers will learn what powers they can exercise in case an Employee’s resignation is due to that Employee wanting to escape justice after taking part in unethical and or unlawful activities.
In the majority of cases - it is usually the Employer who is right in their accusations against the Employee if the Employee chooses to resign during a disciplinary hearing.
It is because of the simple fact that those who are in the wrong would never normally want other people, colleagues and the like, to know their story.
If it was the Employer who was wrong - why would he initially bring up charges?
Wouldn’t it be better to simply put an end to the wrongdoings themselves and keep the matter quiet?
Why would the Employer bring attention to his own wrongdoings?
In this situation, it is the Employee who is trying to keep things quiet by asking for a resignation - or worse, resigning without warning.
To anyone on the outside, this would look like the Employee is ‘running away’.
The Employer is advised to do proper investigation to hopefully obtain some proof of the Employee in their act of wrongdoing, in the form of
And to the Employee, it is best not to run away by promptly resigning. Instead, if you are wrongly accused, prepare to defend yourself. Since you did not transgress the disciplinary code, there should be no evidence against you that will hold up.
However, if the Employee wishes to resign, they can do so by giving the proper advanced notice.
An Employee has the right to resign at any time, always provided that their resignation does not place them in breach of his employment contract.
How many days advance notice depends on the contract between the Employee and the Employer.
Ordinarily, if employed for more than a year, the advance notice must be 4-weeks.
However, if the Employee chooses, they can also resign at once as there is no law which says an Employee is forced to work for the Employer against their will.
In this case, the Employer has two choices: to accept the resignation or to reject it.
If the Employer accepts the resignation, they cannot enforce any kind of disciplinary action as both Parties must agree on: requesting the resignation – and then accepting it.
However, in the second case, the Employer can choose not to accept the resignation. Thereafter, the Employer can proceed to pursue with disciplinary action against the Employee.
But in both cases, the Employer cannot force the Employee to continue to work as the Employee is not bound and can stop attending work any time they want.
The case of Kynoch Fertilizers Limited v Webster (1998) 1 BLLR 27 (LAC) regulates the abovementioned circumstances.
If the Employee resigns almost as soon as being requested to attend a disciplinary hearing, it puts them in a bad light.
As discussed above, it cannot be a coincidence and resignation benefits the Employee more than the Employer, as the Employer cannot prove anything.
However, what looks even worse and has greater implications is not appearing before the disciplinary hearing.
This effectively dismisses the Employee of the right to defend themself.
However, in the favour of the Employee is, that since the Employee is no longer a ‘current Employee’, the Employer cannot discipline him anymore.
This is only due to the fact that the Employee-Employer relationship has ended.
In some cases, this is good for the Employer as they no longer have to work with an Employee which will most likely damage the company’s reputation.
However, if the breach committed by the Employee is serious, the Employer can still pursue their case - not in the form of a disciplinary hearing, but possibly as a criminal charge.
If the damage done by the Employee is of a great magnitude, the Employer should consider hiring a professional Attorney to process criminal charges against the ex-Employer.
But if the situation is not that severe, an Employer should consider simply accepting the resignation and cutting all ties.
It should go without saying - never to rehire them again or recommend them to other agents.
But before taking such drastic actions - be sure to make full investigation with the highest amount of surety that the Employee is definitely guilty.
Failure to do so could backfire on your whole accusation and instead could lead you to being accused of ‘unfair treatment’ or ‘defamation’ by your Employee and you could be taken to the CCMA or Labour Court.
The Employer may however have a claim against the Employee that resigns without notice for any damages suffered by the Employer.