Ask for a resignation letter. The employee remains an employee of the employer until his notice period expires and therefore the employer can still go ahead with the disciplinary proceedings. Employees who resign to avoid disciplinary action often refer constructive dismissal disputes to the CCMA or bargaining councils. 1. Jean and the Pagdens team has uncompromising integrity, business ethics and incredible depth of legal knowledge. This case was complicated by the fact that Ms Mtati had submitted two letters of resignation to KPMG. Webster thereafter signed a document in which he tendered his resignation, which was accepted by his employer. Step 5: Deciding on the disciplinary outcome, Acas Code of Practice on disciplinary and grievance procedures, Acas training on discipline and grievance, Acas guide to discipline and grievances at work, sufficient information about the alleged misconduct or poor performance, possible consequences, for example a written warning, further action, for example the employee raising a grievance, existing mental health issues getting worse. The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. If the employee resigns with immediate effect, their employment will terminate on that day. Your IP: Overall the decision on what to do next depends on the allegation and how far along the process is. Another context of resignation is the normal resignation. The Labour Court concluded that an employer has no authority or power to discipline an employee who has resigned once the resignation has taken effect. Resignation with immediate effect terminates the employment relationship instantly upon its communication to the employer. Please click Confirm below to continue. This means that the employee remains an employee of the employer until the notice period expires and disciplinary action can still be pursued against such an employee during their notice period. Legal Effect of an Employee's Resignation in Anticipation of Disciplinary Proceedings. The impact of the amendments to the Employment Equity Act, No 55 of 1998 (EEA) are starting to emerge as the Labour Court delivers judgments. If the hearing is not concluded before the end of the notice period the employer will lose the right to discipline the employee when the employment relationship terminates. They have helped us to navigate two particularly complex issues in our business with huge success, the last one being the sale of the business. Please do not include any personal details, for example email address or phone number. The employer can simply proceed with the disciplinary process as normal. At the disciplinary hearing, MsMtati objected to the chairpersons jurisdiction to preside over her hearing, given her resignation with immediate effect. Resignation during a disciplinary process What can an employer do? The employee will have to provide the employer with notice of their intention to resign. If the disciplinary procedure concludes with a recommendation for the employee's summary dismissal on the grounds of gross misconduct, if this is effected during the employee's notice period it will supersede the resignation and the employee will be deemed to have been dismissed for conduct reasons. Was this article helpful? Resignation before disciplinary action. My question is what is the best way forward with this situation. Employers need to be aware that anything they say or include in email or other documents could be used against them as evidence to support such a claim. In terms of this view, an employer has no right to hold an employee to a notice period during which disciplinary action could be taken, on the basis that the resignation is a valid unilateral act. 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 also have a duty to any future employer who may take this employee on to give a true, factual reference. accept the employee's repudiation by accepting the resignation 'with immediate effect' (without proper notice); or. 11th Jul 2007 16:09. This cookie is set by GDPR Cookie Consent plugin. Ms Mtati then brought an urgent application in the Labour Court seeking an order to declare the disciplinary process and her dismissal null and void. Rather than inviting employees to resign in ordinary disciplinary situations, such as where misconduct has occurred or performance is unsatisfactory, its recommended that employers use the right introducedunder the Employment Rights Act in July 2013 to have protected conversations. 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 employment is not immediately terminated. Normally, it is in the false belief and hope that the subsequent resignation with immediate effect will automatically override resignation on notice. Performance & security by Cloudflare. In that event, the employment relationship, including rights and obligations arising thereof, ceases to exist. 2. Top tips for employers: How to manage delays in disciplinary processes However, where the employee is given the notice to attend the disciplinary proceedings but fails, the employer is entitled to interpret such non-attendance as a waiver of the employee's right to be present and mount a defence. Is it better to quit than to be fired? Resignation by an employee Effect of Employee'S Resignation on Disciplinary Proceedings I often warn employees that they could find themselves subject to a reference which (fairly) states resigned during a disciplinary procedure. We continue to enjoy a legal service superior to what we have experience anywhere else. In addition, you may face problems if a similar situation arises in the future but next time you chose to continue as it's a less favoured employee - you need to be consistent as this could make future action unfair or even discriminatory. Staff Disciplinary Hearing Procedure, Tips & Template However, keep in mind your companys policy for giving references. Employers are often faced with a scenario where an employee, who is due to be subjected to a disciplinary hearing, elects to resign with immediate effect. Webster thereafter signed a document in which he tendered his resignation which was accepted by his employer. The Labour Court had to determine the question of whether a disciplinary process can continue once an employee has resigned in, In determining the matter, the Labour Court relied on the minority judgment of the Constitutional Court in. Going through a disciplinary procedure can be very stressful, so it's important that employers consider the wellbeing and mental health of their employee. However, the court further stated that when an employee resigns with immediate effect and leaves immediately, the employees status is changed from that of an employee to that of a former employee, which deprives the employer its right to discipline the employee and the employer no longer has jurisdiction over the employee. It also denies the employer an opportunity to, as a matter of policy, address the alleged acts of gross misconduct and take appropriate sanctions against such employee as a deterrent. But to keep good working relationships, it's a good idea if employers follow the same fair procedurefor all workers. Consider these 3 focus areas, Is it really a Trade Union? An employer can, therefore, only pursue disciplinary action against an employee who is in his employ. If an employee resigns after disciplinary proceedings have started For the employee, it would avoid a humiliating disciplinary process and a black mark on their CV if they were dismissed which could damage their chances of gaining employment elsewhere. Ludwig Frahm-Arp and Siphamandla Dube analyse a Labour Law case in an effort to explain an employers rights in dealing with employees who resign while facing disciplinary action. However, does an employee have a right to resign from his employment in order to avoid disciplinary action? The employer may agree to allow the companion to answer questions on behalf of the employee. For more information or to discuss a particular matter please contact us. or reject the employee's repudiation, hold the employee to the notice period and proceed to hold the hearing during the notice period, even if the employee chooses not to attend. Therefore, an employer can . What if an employee resigns during disciplinary proceedings? Our instructions range from drafting of agreements, conveyancing, litigation, collections and general commercial advice. Recent decisions have, however, departed from this position, and for good reason. Checking this box will stop us from using marketing cookies across our website. This website uses cookies to improve your experience while you navigate through the website. The employer may seek to prove that the employee breached the contract of employment while resigning. disciplining employees after resignation' - Cliffe Dekker Hofmeyr The resignation takes effect when the period expires. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. talk with the employee during the hearing. As a result she was found guilty and dismissed. The Acas Code mainly applies to those with employee employment status. 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. The proceedings can then go on, notwithstanding the employees absence provided there is employment relationship. Alternatively, the employee may argue that they were forced to resign involuntarily and the employer could end up facing a claim for constructive dismissal. Step 4: The disciplinary hearing: Disciplinary procedure: step The judge accepted that employers may discipline and dismiss employees during the notice period in the event of a resignation as such persons remain employees of the employer. The employer may not reject such resignation. 20 Oct 2020. However the employee has sent a letter fo resignation in giving 4 weeks notice. By following the disciplinary procedure through to the end you have complied with your legal obligations and minimised the risk to yourself. Consider whether there is a good reason to start a disciplinary process. Preparing for a disciplinary or dismissal meeting Marchmouse Media Ltd - EmploymentSolicitor.com is not a firm of solicitors. When the individual employment contract is silent on what notice period would apply on termination of employment, the notice provisions in the BCEA provisions would apply. By clicking Accept All, you consent to the use of ALL the cookies. This is most often seen when the employee is facing a disciplinary hearing and there is compelling evidence to prove they have breached their contract. There are several actions that could trigger this block including submitting a certain word or phrase, a SQL command or malformed data. Resign or face a disciplinary hearing! - EmploymentSolicitor.com We use analytics cookies to help us understand how people use our website. It is trite law that employees may resign from his employment, either with immediate effect or on notice, thereby unilaterally terminating the employment relationship. It should be noted though that the development of the law in this area is rather problematic. Blog Can I refuse the employee's resignation? The courts in Nigeria have held that the consequence of resignation with immediate effect is that the employee will forfeit all benefits under the contract of employment as the resignation was in breach of the contract of employment. 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. Ask the expert: Resigning after suspension To be clear, disciplinary hearings are just one step in a disciplinary procedure. We also use third-party cookies that help us analyze and understand how you use this website. They can only do this if they have worked for the organisation for 2 years or more. It's important throughout the procedure for the employer to keep talking with both the employee being disciplined and any other staff affected. Is an employee able to avoid a disciplinary hearing or disciplinary sanction by resigning? It's a good idea for employers to check whether your workplace has dealt with a similar situation before. The employee might feel they want to resign or 'jump before they're pushed' when they are facing a disciplinary. It must also be noted that nothing in law prevents an employee who resigns on notice, which is then accepted by the employer, from thereafter resigning with immediate effect during the notice period. In fact, any such provision in the contract of employment or employee handbook is illegal and unconstitutional.2 No employer can prevent an employee from resigning from its employment. On this basis, Ms Mtati argued that the disciplinary hearing chairpersons decision was null and void. If the employee is found guilty before the notice period's expiry, and the employer terminates the employment contract, such termination will be reflected as a dismissal and not resignation. It might be appropriate to deal with both at the same time if the grievance and disciplinary cases are related. 6001, Contact | PAGDENS | Law Firm In Port Elizabeth, 3 Insights to fixed-term employment contracts. What happens with resignation and disciplinary hearings The employee could potentially claim constructive dismissal (eg; by claiming they were pushed out and forced to resign). 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. To comprehend the rights of employers in such situations, I present the facts and fallacies of resignation. You need a resignation in writing so you can add it to the employee's personnel file. Resignation before Dismissal After Disciplinary We have just had a disciplinary meeting with one of our employees over a matter of false reporting of time on staff time sheets - i.e fraudulently claiming hours not worked. Is an employee able to avoid a disciplinary hearing or disciplinary
161 Maiden Lane Leaning Tower, Articles E