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Employees often consider to immediately terminate their employment relationship due to a new opportunity arising or to avoid responsibility when faced with disciplinary procedures. Employment relationships are governed by an employment agreement or legal statutes, and in most cases both. If an employer and employee do not expressly agree on the notice period needed for either of them to terminate their relationship, section 37 of the Basic Conditions of Employment Act, 75 of 1997 (the Act) provides for minimum notice periods. But what happens when the employee does not follow the notice period in the employment agreement and resigns with immediate effect?
The Labour Appeal Court address this matter in Standard Bank of South Africa Limited v Nombulelo Cynthia Chiloane (2021) 4 BLLR 400 (LAC). In this matter, the employee was said to have cashed a cheque without following proper procedures. It later transpired that the cashed cheque was fraudulent, which caused the employer a loss of just under R30 000. The employee was given notice to attend a disciplinary hearing. On the day that the employee received the notice to attend the disciplinary hearing, she handed her superior her letter of resignation, stating that she was tendering her “resignation with immediate effect”.
Standard Bank proceeded with the employee’s disciplinary hearing during her contractual notice period, but the employee argued that her resignation immediately terminated the employment relationship, and that Standard Bank was therefore not entitled to proceed with her disciplinary hearing. The chairperson of the disciplinary hearing rejected this argument and proceeded with the hearing. The employee and her attorney then left the disciplinary hearing, which proceeded in her absence.
The employee was ultimately found guilty of the misconduct and dismissed. After becoming aware of the dismissal, the employee launched an urgent application in the Labour Court to challenge the validity of the dismissal.
The Labour Court held that a resignation with immediate effect terminates the employment relationship immediately and Standard Bank was not permitted to hold the employee to her notice period. Accordingly, the Labour Court declared that the employee’s dismissal was null and void. Standard Bank, however, appealed the decision to the Labour Appeal Court.
The Labour Appeal Court held that if the contract provides for a notice period, the party that seeks to terminate the contract must give or serve the prescribed notice. A party’s failure to abide by their notice period thus amounts to a repudiation of the employment agreement. The Labour Appeal Court found that the employee’s reliance on her resignation being with immediate effect was not valid. Standard Bank was therefore within its rights to hold the employee to her notice period as prescribed in her employment agreement, and to proceed with her disciplinary hearing during that period.
What is important to note from this judgement is the fact that unless the employer releases the employee from his/her obligation in terms of the employment agreement, the employee will commit a breach of agreement. Accordingly, the employee can also be held liable for damages suffered by the employer.
Employees will also expose themselves to a poor reference for future opportunities.
Should the employer, however, decide to accept the short notice, even when it contradicts the prescribed notice period, there will be no obligation on the employer to pay the employee beyond the last day on which they worked.
Accordingly, it will be best for employees to revisit their employment agreements prior to tendering their resignation or committing to any other opportunity. However, should the need arise for short notice, employees will have to engage with their employers to see if a mutual agreement can be reached to accept the notice.
• Standard Bank of South Africa Limited v Nombulelo Cynthia Chiloane (2021) 4 BLLR 400 (LAC)2021) 4 BLLR 400 (LAC).
• Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening (2016) 37 ILJ 564 (CC).
• Basic Conditions of Employment Act, 75 of 1997.
This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)