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. In some instances, it has been known that the employee resigns, and then refers a dispute of constructive dismissal to the CCMA or Bargaining Council.
The constructive dismissal dispute is usually based on allegations by the employee that they are innocent of the charges and cannot accept being treated like a criminal by the employer, that they have been defamed, and therefore had no option but to resign. Constructive dismissal disputes of such a nature will not succeed!
In other instances, employees resigned because they feel that a resignation “looks better on my record” than does a dismissal. The question is what are the options of the employer when the employee does resign when faced with disciplinary action? Obviously, the employer has concluded that an act of misconduct has occurred; they have hopefully investigated the matter fully and have decided that disciplinary action is called for.
These resignations by the employee are seldom in the face of a minor matter – it is usually a serious charge, such as theft or fraud, unauthorised possession of company property, absence without leave (perhaps not for the first time), extreme insubordination or something of a serious nature. In other words, an offense of such gravity that dismissal is likely to result.
There are no hard and fast rules laid down in labour legislation regulating such matters. The Basic Conditions of Employment Act (BCEA) or Main Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty, and Skincare Industry contains no provisions that prevent an employee from resigning when faced with disciplinary action, and similarly, no provision giving the employer the power to refuse to accept a resignation.
Employees usually resign because they think that the resignation will make the allegations disappear and that the employer can prove nothing. Employees who resign, and subsequently failed to appear at the disciplinary hearing, must remember that it is then construed that the employee has waived their right to present a defence against the charges. The employee then cannot afterward go to the CCMA or Bargaining Council, complaining that they were dismissed without being given the opportunity to present a defence.
The downside for the employee is that the employer, upon receiving the letter of resignation, immediately concludes that the employee is guilty. Employees should remember that the employer has, by this time, gathered sufficient evidence that leads them to believe that the employee is guilty.
Until such time as the employee can dispute that evidence, or put forward a justifiable defence to the charges, the employer will continue to believe, based on the evidence they have, that the employee is guilty. If the employee resigns from the employment and does not appear at the disciplinary hearing, there is only one possible outcome. The hearing will continue in the employee's absence, and based on the evidence placed before them, the chairperson will arrive at the guilty verdict. The employer is fully entitled to proceed with the disciplinary hearing even if the employee has resigned.
Employees must remember that when they tend a letter of resignation, it is not a resignation that terminated the contract immediately upon handing the resignation letter to the employer. The employee is required to provide the employer with the contractual period of notice – this may be, for example, one month. Therefore, the letter of resignation in fact uniforms the employer of the employee’s intention to terminate the employment contract on a future date.
The employee remains in the employ of the employer until that date is reached – and therefore the employer can still go ahead with the disciplinary proceedings because the employee is still employed by the employer. Thus, a resignation by an employee when faced with disciplinary action does not necessarily “look better on the employee’s record,” because the employee’s record will still contain details of the alleged offences, details of the disciplinary hearing held in absentia, and the outcome of the disciplinary hearing.
To continue with a disciplinary hearing – it is, of course, a decision to be made by the employer. There are many employers who have better things to do with their time than pursue a matter in the face of resignation from an employee, and they simply drop it and get on with the task of running their business. Employees should also remember that, in the face of allegations involving a criminal element, such as theft or fraud, or perhaps assault, the employer is still entitled to proceed with criminal charges, despite the fact that the employee may have tended a resignation.
Employers that do not want to continue with a hearing after the employee resigns should be extremely careful in accepting the employee's resignation. The employee should be informed in writing that the company accepts their resignation but that:
The resignation is in the face of disciplinary action;
Out of the free will; and
That the employee cannot claim that they were constructively dismissed by the employer as a result of the disciplinary action against them.
Further to this the employee must be invited to withdraw the resignation if they resigned in the heat of the moment and believes that it would be better to continue with the hearing after receiving the letter referred to above.