Further insight into resignation in the midst of a disciplinary hearing- Should our Courts adopt the RSA judicial approach on the issue?
In our last publication we developed an understanding that the notion that an employer cannot proceed with disciplinary hearing where the charged employee has resigned with immediate effect per Labour Court decision in Mahamo v Nedbank is now settled. This seems to have been accepted as well by the Lesotho Court of Appeal which pronounced in Dr. Kananelo Mosito v Prime Minister and others (C of A CIV 9/2018) that “the tribunal proceeded with the disciplinary process, when the first appellant had already resigned that was a misdirection”. The Court equated rejection of resignation and proceeding with disciplinary process to forced labour, which it said is prohibited in terms of Section 152 of the Lesotho Constitution. There is no doubt that the Courts in Lesotho would not entertain such situation where a person who has resigned with immediate effect is forced into disciplinary action because the employer would have rejected the resignation.?
This notion filtered into our jurisdiction from the eSwatini precedence where it had been settled way back in 2007 in Graham Rudolph v Mananga College (CIC Case 94/2007). The Court had declared that “resignation is a unilateral act which brings about termination of employment relationship without requesting acceptance….. The question whether termination of the appellant’s service was fair and reasonable does not arise in circumstances where the applicant has resigned and no case of constructive dismissal has been pleaded or established”
The South African jurisdiction, probably influenced by its highly dynamic labour jurisprudence and the much acclaimed Constitutional democracy has taken a different approach altogether. From the onset this is highly commendable and the Lesotho labour adjudication labour system should learn from the approach and adopt it. The approach laid down in the SA Labour Court case of Mark Michael Coetzee v The Zeitz Mocaa Foundation Trust and others C517/2018) is that where an employee resigns with immediate effect from employment, statutorily there is an obligation to serve four weeks’ notice at least.? If an employee resigns on no notice, the employer remains entitled to exercise its contractual rights during a notice period. During the notice period there is no legal impediment to the prosecution of disciplinary proceedings and if warranted the subsequent dismissal of an employee for misconduct.
The approach is obviously a departure from the Lesotho and eSwatini thinking. The SA courts justify their thinking in the following way:
·?Although resignation is a unilateral act, where an employee gives? the required notice, the contract terminates at the end of the notice period
·?When an employee leaves his or her employment without giving the required period of notice, the employee breaches the contract
·?Ordinary contractual rules dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice
·?Alternatively the employer may elect to accept the employee’s repudiation, cancel the contract and claim damages.
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The facts in the Coetzee case were that the contract of employment required the employee to serve notice of not less than 6 months upon resignation. When he was called to disciplinary proceedings to make representations on allegations of misconduct he resigned with immediate effect.? The same facts occurred in Mahamo case referred to above, except that notice period was one month. In both cases the resignation was with immediate effect. In Coetzee the employee was pinned down to his obligation to serve notice while in Mahamo the Court looked at resignation as ending the employment relationship immediately. ?
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The Lesotho and SA approaches however differ in the following way:
·?In the Labour adjudication system, contract of employment is not treated or interpreted in the same way an ordinary commercial contract or contract for service
·?The practical difference between a contract of employment and a contract for service is that workers employed under the former gain additional rights and protection from the law by default. In the latter the emphasis is on enforcement of contractual obligations such that where there is breach the contract is strictly enforced, failing which damages for breach of contract are claimed ?
·?The Lesotho approach on the resignation of the employee where relationship is immediately terminated and cannot be enforced is a different thinking which goes with the former while the SA approach looks at the contract in a different scenario altogether
·?The emphasis in the Lesotho jurisdiction is that there is a difference between resignation with immediate effect and resignation with notice. In the former situation the relationship does not continue despite being terminated with immediate effect.
We have noted that the Labour Code is being amended with consultations being made extensively by the social partners. It may be worthwhile to revisit the common law and draw appropriate statutory clauses to accommodate the issue of resignation in the manner explained above. For employers the SA approach can be beneficial in that the transgressions that the employee would have committed would not be washed away by resignation with immediate effect. However to balance the act, the law may state that the employee would only escape the disciplinary action if the employer demonstrates with evidence that the misconduct committed would cause financial loss to the employer, for example where the case involves dishonesty, fraud, laundering, theft by false pretenses etc. In this way it would only make sense if the disciplinary process is done so that the employee would not walk away with terminal benefits where monetary loss would have occurred on the part of the employer occasioned by the act of misconduct. ??
Labour law is generally very dynamic and should adapt to modern thinking law enforcement and legal compliance, such as money laundering, benefitting from proceeds of crime and prosecution for committal of economic offences. Workplaces should not be areas where such crimes are left to occur without protecting the victim who is the employer. Immediate resignation has the effect of jumping ship and escaping liabilities unabated.