Resigning in the face of possible dismissal

Resigning in the face of possible dismissal

It happens that an employee resigns with immediate effect after being served with a notice to attend a disciplinary hearing.  The contract of employment however sets out that the employee may only resign on four weeks’ notice.

The question therefore arises as to whether it is possible to hold an employee to the notice period and still run an enquiry? The simple answer to the above is NO.

In the matter of Naidoo & Another v Standard Bank SA Ltd & Another (Labour Court Case No. J1177/19), the Court confirmed that when an employee resigns with immediate effect, the employer loses its disciplinary authority over the employee as such authority only extends to its employees. 

Should the employer wish to continue with the enquiry, it must first approach the Court to obtain an order of specific performance; only when such an order has been granted may the employer proceed with the enquiry.

This case has far reaching consequences in industries which allow for the black-listing of dismissed employees.

For any queries in relation to the above please do not hesitate to contact Goldberg & De Villiers Inc, Tel (041) 5019800. E-mail traceym@goldlaw.co.za.

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