Immediate resignations contrary to legal procedures – we discuss its complexities
Employment contracts always include a notice period should an individual decide to resign. Typically, South African workers must give a calendar months’ notice when they decide to part ways with their employer, but what happens in the case of resignation with immediate effect, especially when there are pending disciplinary actions? Nicol Myburgh, Head of the HR Business Unit at CRS Technologies, navigates the complexities in this regard.
“According to contract law, an employee’s contract of employment only comes to an end once the resignation takes effect at the end of the notice period,” he explains. “This means that resigning with immediate effect sees the employee in breach of contract. Consequently, the employer can either accept the resignation or hold the employee to the contractual notice period.”
“Attempts by employees to circumvent any pending or potential disciplinary actions by trying to resign with immediate effect are therefore futile. They cannot escape the consequences of their actions by following this route. Using ‘immediate effect’ as an escape clause holds very little legal traction.”
Myburgh cites an example of a Cape Town schoolteacher who resigned before her employer could institute disciplinary action against her for alleged sexual misconduct. “Even though she was no longer employed by the school, she could not escape the disciplinary process – both from her employer and the law.”
In other words, an employee who resigns on notice may be disciplined and even dismissed while serving their notice. “This means that the dismissal interrupts the resignation and will be recorded as a dismissal,” Myburgh explains.
Apart from the issue of disciplinary actions, it is important to consider the investment companies make in their employees. When an employee resigns, he or she must be replaced. While it is easy to assume this can be done quickly using internal resources, the more realistic and practical option is to find new talent.
Companies spend considerable time and resources on ensuring employees are trained and upskilled according to the requirements of their position and the digital age. If someone resigns with immediate effect, there is very little opportunity for the organisation to take adequate measures to replace them. Furthermore, the individual has acquired extensive knowledge about the processes and requirements of their job – all of which cannot be transferred to the replacement if the employee leaves immediately.
“Companies (and their employees) must therefore carefully examine their employment contracts, making sure they fully understand the conditions when it comes to resignations and notice periods,” he concludes.