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Disciplinary hearing can proceed in notice period

Question

After identifying serious transgressions warranting disciplinary action, we have been investiga­ting a number of employees in our company over the last few months.

We instructed human resources to issue disciplinary notices to the relevant employees.

Following the receipt of these, three of the employees resigned with immediate effect.

Can or should we still proceed with disciplinary action against these employees now that they have resigned?

Answer:

If an employee resigns from the employ of his employer, the employer may not proceed to discipline that employee after the resignation has taken effect.

The employee is no longer in the employ of that employer, and that employer has no authority or power over the employee.

That said, until the employee departs at the end of his or her notice period, a disciplinary hearing may still be insti­tuted and finalised during the employee’s notice period.

But what happens if the employee resigns with immediate effect?

To answer this, one must first look at the wording of the resignation letter to determine whether the resignation is with immediate effect, or whether the employee intends to serve a notice period.

The notice period could be a period agreed upon by both parties by virtue of the provisions of an employment contract or, in the absence of an employment contract, in terms of the statutory requirements outlined in the Basic Conditions of Employment Act 75 of 1997.

In this instance, the employee agrees to be contractually bound to give a resignation notice as stated in the employment contract.

If, however, the employee resigns immediately despite any applicable notice periods, the resignation can also have immediate effect.

This essentially means that the employee does not intend to serve any period of notice applicable and is essentially acting in breach of his or her contract of employment.

So, what is the position in the latter instance?

There are some conflic­ting views in this regard, but in the recent case of Naidoo and Another v Standard Bank SA Ltd and Another, the Labour Court held that an employer does not have the power to discipline an employee following a resignation with immediate effect.

The only way that the employer can achieve this, is for the employer to approach a court to obtain an order for specific performance.

The specific performance order will enable the employer to hold the employee to the terms of the contract in respect of the notice period and to proceed with the disciplinary action against the employee during this notice period.

Therefore, you as em­ployer cannot proceed with a disciplinary hearing against an employee who has resigned with immediate effect unless an order of specific performance is obtained from a court.

Then your employees can be obliged to serve their notice period agreed upon and so enable you to proceed with the disciplinary hearing during the notice period should you wish to do so.

Tata Mokwayi, senior associate, Phatshoane Henney Attorneys

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