Even if the resignation is intended to be "effective immediately," it might be wise to give them at least a 24-hour period to consider their decision before you accept it. This should therefore reflect the real reason for dismissal - particularly given the nature of the offence. EMAILTHISARTICLE. We're always adding new printables, and would love to hear your suggestions. According to the employer it never agreed to Coetzee resigning with immediate effect, nor did the employer waive its right to notice. Privacy Policy. 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. The company held the view that it could proceed with disciplinary action before the expiry of the contractual notice period. The company was ordered to pay the costs of the application. Delivering informative employment law content and helping you to secure expert advice from recommended employment solicitors. Please click here for further information on the right to to be accompanied at disciplinary meetings. The tribunals have said that this will also include situations where, even without bad faith on the part of the employee, proceedings have gone on for long enough and a decision must be taken. The court continued that the election to cancel lies with the aggrieved party and not the aggressor. In particular: The Code sets out procedures the employer should follow when handling a disciplinary. On the same day that the employees received the notice to attend a disciplinary hearing, they submitted their resignation letters to their employer. Government, Politics & Policy Enjoy 10 days of tailor-made Tips & Advice. 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. She was found guilty of the allegations against her and dismissed. Discipline and grievances after employment has ended You should give your employer advanced notice of an intention to call your witnesses. The Labour Court was called upon to determine whether: There are conflicting Labour Court judgments which deal with the issue of whether employers may discipline an employee after a resignation with immediate effect. You also have a duty to any future employer who may take this employee on to give a true, factual reference. This was not done by the employer in this case. A failure to follow it will not therefore always result in an automatic penalty for either the employer or employee. However, we are not limited to these areas of the Law. In our view an employer that wishes to hold the employee to the notice period contract of employment, should be entitled to pursue any other rights that it has in terms of the contract of employment, including right to take disciplinary action (See discussion in https://www.labourwise.co.za/labour-articles/disciplinary-action-resignation). WebThe hearing should be held as soon as possible after the investigation, while giving reasonable time for the employee to prepare. The next day, 16 May 2018, Coetzee approached the employer saying that he wanted to tender his resignation. WebAs a minimum disciplinary and grievance records should be kept for at least 6 months following termination of employment to ensure that you have all the relevant paperwork in the event a claim is brought against the organisation. However, unless such warning comprised part of a disciplinary process as outlined above, your employer would not be able to rely on it as part of any future disciplinary or tribunal proceedings. Your employer should only proceed to hearing if they have exhausted other avenues, for example, inviting you to make written submissions if you cannot be present due to sickness, or trying to obtain an occupational health report on your ability to participate. The employer has a choice: Firstly, it may hold the employee to the contractual notice period. The disciplinary meeting should be held without unreasonable delay and allow you reasonable time to prepare your case. The ACAS Code recommends that employees should be informed howlong a warning will remain current, and in the case of a final warning, the consequences of further misconduct within that period. Pro advice. WebThe employer is entitled to proceed with the disciplinary hearing even if the employee has resigned. The Information Regulator issued an Enforcement Notice to the DoJ. It also departed from the applicable principles of contract law. Black Economic Empowerment Specifically, the DoJ had failed to renew its Security Incident and Event Monitoring (SIEM) Licence and antivirus licence since 2020. The court referred to contract law and confirmed that an employees contract of employment comes to an end only once his resignation takes effect at the end of his notice period. separate emails by commas, maximum limit of 4 addresses, Disciplining an employee after resignation, ARTICLE ENQUIRY The court confirmed the judgment of Mzotsho v Standard Bank of SA (Pty) Ltd which stated that where an employee has resigned with immediate effect, even before receiving a notice to attend a disciplinary hearing, the contractual power to discipline remained. In legal terms, resignation is a so-called unilateral act. Can You Be Terminated After Resigning There are two options for an employee in For more information on any disciplinary matter or your dismissalrights and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us. RESIGNATION Resigning to avoid disciplinary action is not the answer - GoLegal 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. We offer a variety of subscriptions to our Magazine, Website, PDF Reports and our photo library. The employer informed the employee that the disciplinary action would continue notwithstanding her resignation. 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. 3599719. 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. However, if there is a criminal element to the disciplinary hearing, the paperwork should be saved on file and potentially forwarded to the police. The court declared the disciplinary hearing null and void and set it aside. Subscriptions are available via the Creamer Media Store. 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 following should apply: Employers should carry out an investigation of potential disciplinary matters without unreasonable delay to establish the facts of the case. Commentdocument.getElementById("comment").setAttribute( "id", "a4fca673cbef3cee14a3b39babcfc71a" );document.getElementById("cff85cafdf").setAttribute( "id", "comment" ); Labourwise is an online advisory service for employers in South Africa. It is quite usual for your employer to arrange for notes to be taken, and a copy provided to you. 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. WebIf an employee has been notified that they are facing a disciplinary hearing, they may choose to resign rather than endure possible dismissal. For more information on any disciplinary matter or your dismissalrights and a free consultation, please get in contact on. Although the judgement was overturned on appeal, the Labour Appeal Court (LAC) in setting aside the Labour Courts order replaced the judgement with an order that reads the application is dismissed on the grounds of mootness. If she is then dismissed due to gross misconduct, this This process is largely governed by the ACASCode of Practice (the Code), the details of which are summarised below. Covid-19/Coronavirus F: 086 510 6417 GoLegal is a leading industry news and information portal for the South African legal sector, catering to attorneys, corporate counsel, legal scholars, policy makers and other corporate and legal interest groups. 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. WebIn a previous court proceeding (Kennedy Oaga V Kenya Ports Authority), the court ruled that the Employment Act does not bar an employee form tendering their resignation when a disciplinary hearing is ongoing. 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. Being asked to resign impacts you in a different way than being fired. The court declared the disciplinary hearing null and void and set it aside. It is heartening that a return to strict principles of contract has prevailed. (We held a different view and discussed the judgement in an article in January 2018.) 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%. The employee could potentially claim constructive dismissal (eg; by claiming they were pushed out and forced to resign). It may involve interviewing and taking statements from you and any witnesses, and/or reviewing relevant documents. So for example, if an employee claims that they were coerced or bullied into agreeing to resign, then the content of protected conversations may be admissible in court proceedings. Once an employee has resigned, whether lawfully or otherwise, the resignation cannot be undone without the employers agreement. Even after the resignation has been tendered, the discretion still rests with the employer to continue with the disciplinary steps or not. If an employee has been notified that they are facing a disciplinary hearing, they may choose to resign rather than endure possible dismissal. 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. Blog What happens if an employee resigns during the disciplinary process? However, if they give notice, the disciplinary hearing will likely continue, and a dismissal will supersede the resignation. If applicable, ensure your former employee is aware of the potential need to report them to a relevant body and, if they explicitly refuse to attend the hearing, you can go ahead in their absence (or postpone and re-arrange it at least once if they simply fail to turn up). The following should apply: Investigation The court held that in this case it was clear that the employer did not elect to cancel the agreement, thus keeping it alive. 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. Litigation (General; Civil; Insurance; Commercial). A decision to dismiss should only be taken by a manager who has the authority to do so. Employers should carry out any necessary investigations, to establish the facts of the case. Holding a disciplinary hearing ensures two things: that a fair procedure is followed and that there is substantive reason to dismiss the employee. However the employee has sent a letter fo resignation in giving 4 weeks notice. Write to the individual advising them that your grievance procedure applies only to current staff and so you wont be inviting them to a formal grievance meeting (see Follow up ). Disciplinary action after resignation with immediate effect. The employer informed the employees that their resignations were rejected and that the disciplinary proceedings would proceed, effectively holding them to their notice periods. Dismissal Holdinga disciplinary hearing ensures two things: that afair procedureis followed and that there issubstantive reasonto dismiss the employee.

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