Does resigning with immediate effect put a stop to disciplinary proceedings?
The employee in this matter was informed by her employer that an investigation was being conducted into allegations of misconduct levelled against her. She then provided her employer with a letter in which she tendered her notice of resignation. The employer took this to mean that she would serve out her notice period of one month. Ten days later, she was informed that disciplinary action would be taken against her. This prompted her to provide her employer with another letter in which she was resigning “with immediate effect”.
The employer took the view that this second letter did not change the fact that she had resigned by giving notice of termination and that it was entitled to carry on with the disciplinary inquiry. She attended the inquiry and argued that the employer had no jurisdiction to proceed with it because she had resigned with immediate effect. When the chairperson of the disciplinary inquiry rejected this argument, she left the hearing and approached the Labour Court on an urgent basis for an order interdicting the employer from proceeding with the inquiry.
The Labour Court ruled that if an employee resigns “with immediate effect”, the contract of employment comes to an end with immediate effect and the employer loses the right to proceed with a disciplinary hearing against that employee. Accordingly, if an employer proceeds with a disciplinary hearing, despite the employee’s immediate resignation, the disciplinary hearing will be considered to be null and void. This, according, to the court, must be distinguished from the situation where an employee gives notice to terminate the employment. Here, the employment contract would continue to run until the notice period expires and the employer may still discipline the employee during the notice period. Similarly, all obligations that arise from the contract are still binding between the employer and the employee during the notice period. This includes the duty of the employer to pay the salary of the employee.
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