Is it better to quit than to be fired? Resignation by an employee pending a disciplinary procedure and its effects in the Kenyan Law.

What does the Law say on termination of contracts of employment?

Section 35 and 36 of the Employment Act 2007, allow parties to a contract of employment (the employer & the employee), to terminate the contract through notice, or payment of salary in lieu of notice. However, the Employment Act is silent on the instances when an employee may terminate the employment contract pending a disciplinary hearing. The Employment Act, 2007 does not bar, or in any way limit an employee, from terminating his/her contract of employment before, during or after,?a disciplinary hearing.

?What happens when an employee resigns pending a disciplinary procedure?

There is a common misconception that if an employee resigns, the employer has to accept the resign for it to be considered “valid”.

There are two types of resignation letter that an employer is likely to receive;

1.?????Resignation with immediate effect pending a disciplinary process

Most of the resignations pending a disciplinary procedure are with immediate effect. The employee uses resignation as a voluntary decision not to go through a disciplinary process. It is more of a “shortcut” to frustrate the disciplinary process- as held in MSA CMELRC Cause no. 171 of 2021 Milca Wughanga Vs Mibisco Ltd.

?What is the decision of the courts in instances where the employee resigns with immediate effect before the disciplinary procedure is concluded?

Courts of law have concluded that an employee cannot be subjected to a disciplinary action after they hand over their resignation to the employer. This decision has been based on the employer- employee relationship that arises from the employment contract. Without the contract, there is no authority.

In Mtati v. KPMG (Pty) Ltd (2017) BLL 315 (LC).?The Employee tendered 2 resignation letters, the first after the Employee found out the Employer was investigating her for misconduct.?The first letter gave the Employer notice when termination would become effective.?The Court held that where an Employee tenders resignation immediately, the Employer is immediately deprived of jurisdiction to continue with the disciplinary process.?Resignation takes effect immediately.?Authority to discipline the Employee is based on the existence of a contract of employment.?Without a contract, there is no authority.

Can the employer decline to terminate the contract upon employee’s resignation?

In Edwin Beiti Kipchumba v. National Bank of Kenya Limited [2018] e-KLR, it was held that resignation by an Employee from employment, is basically termination of employment at the instance of the Employee.?It is a unilateral act.?The Employment Act does not require the Employer to accept a notice of termination issued by the Employee, for that notice to take effect.

The court in Kennedy Obaga Vs KPA,2016 held that once an employee tenders resignation immediately, the employer is immediately deprived of jurisdiction to continue with the disciplinary process. Resignation takes effect immediately. Authority to discipline the employee is based on the existence of a contract. Without a contract, there is no authority.

2.?????Resignation with notice pending a disciplinary process

Resignation with notice derives its power from Section 35 and 36 of the Employment Act, 2007 and the provision of the contract of employment between the parties. In the event that one resigns by giving a notice pending a disciplinary hearing, the discretion of summarily dismissing the employee depends on the employer. This depends on whether the offence committed amounts to a gross or minor misconduct. This is the only instance whereby summary dismissal can supersede the resignation.

In the event that the offence committed amounts to gross misconduct and the employer has resigned by giving a notice-let’s say one month notice, then the employee has to be subjected to the disciplinary procedure until the notice lapses. This was the decision of the court in the case of Vodacom (Pty) Ltd Versus Motsa & Another, the court held that when an employee resigns & gives the required notice, the contract terminates at the end of notice.

Conclusion

In quoting Rika J in Kennedy Obaga Vs KPA,2016, there are jurisdictions where Employers have designed legal frameworks which enable them, to investigate employees’ misconduct, and to drive the process of disciplinary hearing to its logical outcome.?In such jurisdictions are to be found legal provisions, to the effect that an employee against whom disciplinary proceedings are pending, shall not resign, without prior approval of the employer.?Any letter of resignation issued by an employee in such a situation does not take effect, unless accepted by the employer.?Other restrictive laws require an employee who desires to resign when faced with disciplinary proceedings, to give notice of resignation of a period sufficient to the employer, to bring the disciplinary proceedings to an end.?An employer may require, to expressly state, in clear terms in the Human Resource Manual, that where an employee resigns to avoid disciplinary proceedings, he shall not be entitled to any benefits which would be payable on regular termination.?It would be useful to retain the disciplinary proceedings in the employee’s personal file, with a footnote that he resigned to avoid disciplinary proceedings.?With proper laws and regulations at the workplace, it is possible to disincentivize rogue employees who desire to escape the consequences of a disciplinary process, by immediate resignation.??

Our laws as currently framed, do not have any provisions, which would restrict an employee from resigning in order to escape summary dismissal. Rejection of an employee’s resignation and purported summary dismissal long after one has resigned, has no support in our Kenyan Laws.