Wednesday, October 3rd, 2018
If an employee resigns with immediate effect, will the employer be entitled to hold the employee bound to his or her contractual or legally required notice period and to dismiss the employee during the notice period?
In the judgment in Vodacom (Pty) Ltd v Motsa and Another 2016 (3) SA 116 (LC) Justice Van Niekerk confirmed that when an employee resigns and the required notice in terms of the contract of employment or the Basic Conditions of Employment Act 75 of 1997 has been given to the employer, the employee’s service comes to an end on expiration of the notice period. In the event of the employee leaving the employer’s service at an earlier stage without the latter’s permission, it would amount to breach of contract by the employee. In terms of normal contractual principles, the employer will then be entitled to hold the employee bound to the contract or required notice period and to approach the court to claim specific performance of the contract.
Justice Zondo indicated and confirmed in the matter of Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2016) 37 ILJ 313 (CC) that once a valid and legal resignation has been communicated by an employee to an employer, the employee cannot withdraw the resignation without permission by the employer. If the employee is dismissed prior to the date on which he or she would be entitled to leave the employer’s service, one could indeed say that the employee’s resignation has been interrupted by his or her dismissal.
It is therefore clear that an employer does not have to accept a resignation for the resignation to be legal or to be effected. An employer, however, is entitled to hold an employee bound to his or her required notice period and therefore to refuse the immediate effect of resignation. An employer is entitled to take disciplinary action and even to dismiss an employee during the notice period. Even if an employee decides to be absent during the notice period, disciplinary action may be taken in his or her absence. The employer, however, will have to follow the normal requirements and fair procedure and ensure that the employee is aware of the disciplinary action being taken against him or her and is given an opportunity to defend himself or herself.
Author: Hendrik van der Hoven