A common misconception exists that termination of the employment contract can be done by way of a unilateral act. Although tendering resignation means that the employee has complied with the notice clause as provided for in the contract, this does not necessarily mean that the unilateral decision to terminate or end the employment relationship is valid.
The challenging question employers are often faced with is whether the employer is forced to accept the notice of resignation and whether the employee used this resignation to escape facing the consequences. This is important when the employee has been called into a disciplinary hearing and where the employee subsequently tenders a notice of resignation immediately.
In The Standard of Bank of South Africa Limited v Nombulelo Cynthia Chiloane (JA85/18) ("Chiloane") (JA 85/18)  ZALAC 58;  4 BLLR 400 (LAC); (2021) 42 ILJ 863 (LAC) (10 December 2020), the court had to decide whether the notice of resignation tendered by the employee “with immediate effect” was valid and binding. The court also had to decide whether the employer could proceed with a disciplinary hearing for misconduct against the employee scheduled to take place during the course of her notice period.
The court perused the employment contract, and it was common cause that one party had to give the other four weeks’ notice of termination of the employment relationship. The employer refused to accept the resignation and advised her of the notice period. The employer proceeded to conduct the disciplinary hearing. However, the employees’ legal representative argued that the disciplinary hearing is null and void since the employees’ notice of resignation “with immediate effect” terminated the employment relationship. The employee was found guilty in the disciplinary hearing and a sanction of dismissal was imposed.
The same facts were laboured at the Labour Court by the employee and the Court proceeded to rule in favour of the employee. The matter was taken on appeal and the Labour Appeal Court overturned the decision by the court a quo. The court held that the notice given by the employee to resign “with immediate effect” cannot be regarded as termination of the employment relationship. The resignation notice must comply with the contractual notice requirements in order to validly terminate the employment contract.
In other words, if no express agreement exists, the employee’s resignation comes into effect on the expiry of the notice period as stipulated in Section 37 of the Basic Conditions of Employment Act. In light of the above, the court held that the employer is well within his or her rights to request that the employee continues working. This means that any disciplinary hearings and sanctions imposed on the employee during the notice period are valid and binding on the employee, and the employee cannot simply tender a resignation notice “with immediate effect” to escape the consequences of a disciplinary hearing.
Written by Jamie-Lee Payne, SchoemanLaw