James has decided that he no longer wants to work for his employer because he does not want to attend a disciplinary hearing and has subsequently decided to hand in his resignation. His resignation letter indicated that his resignation would be with immediate effect. When James handed his resignation to his manager, Mark, he was advised by Mark that he would have to work his notice period of 4 (four) weeks. James is aggrieved and is of the opinion that he does not have to work his notice period, as he has resigned with immediate effect. In this article we will look at the legal position of resignations with immediate effect.
Most employment relationships are governed by a Contract of Employment, which is signed by both the employer and employee. Such Contract of Employment usually sets out how and when the working relationship between the parties will terminate. This means the Contract of Employment will set out how many weeks’ notice an employee will have to work, should such employee wish to resign.
The Basic Conditions of Employment Act, 75 of 1997 (“the Act”) provides the minimum guidelines on the appropriate notice periods that can be stipulated in the Contract of Employment. More specifically, Section 37 of the Act states that:
37(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than—(a) one week, if the employee has been employed for four weeks or less;
(b) two weeks, if the employee has been employed for more than four weeks but not more than one year;
(c) four weeks, if the employee
(i) has been employed for one year or more; or
(ii) is a farm worker or domestic worker who has been employed for more than four weeks.
The matter of Standard Bank of South Africa Limited vs Nombulelo Cynthia Chiloane Unreported case of the Labour Court J2270/2018 “(the Case”) which was handed down on 10 December 2020 clarified whether an employee can be forced to work her notice period.
The question the court had to answer was whether an employee can immediately terminate her employment relationship with the employer by handing in her resignation letter stipulating she resigns with immediate effect.
The court held that the notice terms stipulated in the Contract of Employment will remain valid and binding and, in the event, where no such term has been specifically agreed on, Section 37 of the Act stipulates the time periods in which employees will have to give notice. Therefore, the reciprocal obligations created in the Contract of Employment will only terminate once the notice period has run out.
The only exception to the above is if the employer agrees not to hold the employee to the notice period. In this regard, the employer will consent to the notice period either, being shorter or that no notice period must be worked at all. This, however, is at the discretion of the employer and the employer has the full right to hold the employee to the notice period as agreed to in the Contract of Employment.
This begs the question of whether an employee will still have to attend a disciplinary hearing, even though he has already resigned? The simple answer is YES. If you have resigned, but you are still within your notice period, you can be subjected to a disciplinary hearing.
Therefore, the following is important:
1. If James’ employer decides to hold him to his notice period, he will have to attend the disciplinary hearing, if such disciplinary hearing falls within his notice period.
2. If James did not sign a Contract of Employment, such notice periods will be governed by Section 37 of Act as mentioned above.
3. If James fails to attend the disciplinary hearing, the employer can continue with it in his absence.
In conclusion, the Court has answered the long-standing question by stating that a Contract of Employment is a valid agreement and if you are to work a notice period, as an employee you cannot resign with immediate effect unless your employer consents thereto.
If you would like to have a bit more information on your notice period, contact one of our experienced labour law attorneys.