I have often been asked about the wisdom of allowing an employee who is to face a disciplinary hearing to resign from the organisation. An employee who resigns from the organisation is, in terms of their contract of employment, bound to provide notice of that resignation in writing. The period of notice is usually one week, two weeks or four weeks, depending on the length of service of the employee.
So what are the options available to an employer, should an employee tender a resignation ahead of a disciplinary hearing, given that the employer has no authority or power to refuse to accept the resignation? Listed below are possible courses of action:
- The employer can accept the resignation and drop the disciplinary hearing;
- The employer can accept the resignation and proceed with the disciplinary hearing on the basis that the employee is obliged to work out their notice period and this period would allow for the finalisation of the disciplinary process, under normal circumstances;
- The employer can entertain a conversation with the employee in terms of which an agreement is reached between them that the employee will waive the period of notice and the payment that goes with that notice period and leave the organisation immediately to negate the possibility of holding the disciplinary hearing and to ensure that the employee leaves with their employment record still being intact;
Many employers are of the view that if an impropriety has been committed by an employee that he/she must face a disciplinary hearing so that the allegations can be confirmed and a disciplinary sanction issued or the employee be acquitted of any wrongdoing, just as would have been the case if the employee had never tendered their resignation. Others have the view that if the notice of the disciplinary hearing was issued to the employee prior to their issuing a letter of resignation, then that disciplinary process should be allowed to run its course. Which of these positions is adopted by the employer is not legislated in the Basic Conditions of Employment Act.
It is my belief that the decision must be based on what would seem to be fair and reasonable under the circumstances and what would be in the best interests of both parties. It is true that the kind of situation under discussion usually happens where the allegations to be brought against the employee are serious for example, dishonesty, unauthorised removal of company property and gross insubordination. The drive from the employee to resign is brought about either by his/her need to retain an unblemished employment record or alternately to attempt to create the basis for a case of constructive dismissal on the basis that they believe they have not committed what has been alleged in terms of the disciplinary notice and that this therefore makes their continued employment with the employer intolerable to the point where all they can do is to resign. Prospects of the latter basis succeeding in the event of a dispute being referred are very slim indeed.
Whatever approach is adopted by the employer must be carefully considered in the light of the circumstances of the resignation, the nature of the allegations being placed against the employee, the time and costs of preparing for the disciplinary hearing, the impact that not proceeding with the disciplinary hearing would have on the principle of consistent and consequent discipline across the employee base in the organisation, as well as whether the employer is able to obtain a waiver from the employee on any risks of possible litigation. If the disciplinary charges relate to fraud or theft or any similar type of criminal transgression, the employer still has the oportunity to pursue criminal litigation and prosecution against the employee, irrespective of whether the disciplinary hearing was held or not. This may be something for which an employee may request the employer to provide a waiver and employers must in such instances be ready to respond when this is placed as a condition attached to the employee’s resignation.
What is apparent is that the approach an employer takes relating to an employee who resigns ahead of, or for that matter during a disciplinary hearing, is not a simple decision and must be carefully contemplated and considered.