It often occurs that before disciplinary action being taken against an employee, they will resign with immediate effect in the hopes of circumventing dismissal for misconduct and to avoid a tarnished disciplinary record. What happens if however, disciplinary action has already taken place, and the employee then resigns before the penalty of dismissal is given?
Resignation After Discipline
The Labour Court recently decided on this point in the case of Mthobisi Mthimkhulu v Standard Bank of South Africa (j928/20).
The Judge observed in this case that “the resignation was nothing but a beguiler” and a “stratagem.” Already having been subject to discipline, the only remaining step was the sanction to be given and so the resignation was deemed invalid.
Resignation Without Notice
It was stated, however, that an employee who is obliged to serve a notice period, as per their employment contract, “repudiates” the contract when they do not serve the notice period (as in this case of immediate resignation). The court further emphasised that the law of contract maintains that an aggrieved party (the employer) has as a right in response to repudiation to accept the repudiation and elect to either cancel and sue for damages or, to seek specific performance.
Thus, the employment contract in this case had not come to an end in terms of the principles of contractual law. This is why such a tactical resignation/repudiation, made after disciplinary action but before the next step of a sanction was imposed, was not valid. The resignation was invalid and the employer did not elect to end the employment contract after receiving the notice of resignation in these circumstances.