Resignation in the midst of a disciplinary hearing-Wither Workplace disciplinary codes

Employers will forever curse the day the decision of Mahamo V.S. Nedbank was passed by the Labour Courts and went on to be confirmed by the Court of Appeal. One employer straight out posed the question- what then is the use of our disciplinary codes and procedures if I cannot use them to finality as they instruct?

Let us discuss a scenario that may lead to where the Mahamo case ended that has become so traumatic to employers. In brief, an employee is alleged to have put her hand in the employer’s cookie jar. As is normal procedure, the employer initiates an investigation. The investigation advises the employer that indeed all evidence points to the said employee. The employer then decides to haul the employee into a disciplinary hearing for alleged misconduct of theft. Charges are drafted, they are served and the employee is afforded time to prepare for the hearing. This is in line with the disciplinary code and procedure of the employer which the employee knows about, was inducted on it and was taken through several refresher sessions, to keep reminding her and other employees of the expected standard of conduct for all employees. So this employee cannot be heard to say she did not know or was never advised that the behavior or their acts were unacceptable.

?On the said day, time and venue clearly indicated to the employee, the disciplinary hearing takes off. As is the procedure, the chairman of the hearing starts by dispensing off preliminary issues to ensure that there are no underlying issues that could delay or cause the disciplinary hearing not to proceed.? Once the preliminary stage is cleared, the chairperson went on to read out the charge to the employee and she is asked to plead- this is where the chairperson asks the employee to indicate whether she is guilty or not guilty of the charge put before her.. It was not surprising that the employee pleaded not guilty, which meant that the hearing would run its full course. Just for information, if she had pleaded guilty, the hearing would have taken a different course, the initiator, who ordinarily is the immediate supervisor of the employee, would then be asked to present evidence that she would have presented had the employee pleaded not guilty.

If the employee does not have any objections to the presentation, the chairperson would then end the hearing and proceed to prepare his report and verdict on the basis of the evidence presented.

In our case, because the employee had pleaded not guilty, the hearing took a different course and the initiator was asked to start presenting the case and calling in witnesses who would also give evidence to prove the guilt of the employee. This benefit would also be afforded to the employee in order to give her the opportunity to present her side of the story and prove her innocence. That is how the rules of natural justice operate.

As the hearing progressed and perhaps when the employee realised that the evidence was overwhelming against her, she took a decision to hand in her resignation which would be effective immediately. She was clever or was cleverly advised not to even serve notice as the employee would still have a right to proceed with the hearing even during the notice period- she would still be an employee after all. This resignation caught the employer unexpectedly and they decided to refuse to accept the resignation, told the employee to finish the hearing first then she could leave, otherwise she would forfeit her terminal benefits. The reason that she resigned was to protect the very terminal benefits that the employer was threatening to withhold. She knew, or was advised, that she was better off resigning because if found guilty for the misconduct, she would lose her terminal benefits. Furthermore it would be in her best interest to resign and keep a clean record – it does not look good to leave a workplace on dismissal, The employer was adamant, no hearing no terminal benefits!

She then approaches the courts of Law to come to her rescue and instruct the employer to release her terminal benefits. The employer could not believe her gall, she steals and then when the processes are put in place to deal with her misconduct, she resigns and demands money, really? What nonsense is that? But the court said, hold on, we live in a country where our Laws abolish forced Labour. So when an employee resigns, an employer cannot refuse to accept the resignation. It is not up to the employer, it is a unilateral decision of the employee that is not dependent on how the employer feels or his plans for the employee at the time of resignation. Refusing to accept the resignation is like forcing the employee to keep working against their will and that would be forced Labour, and forced Labour is illegal.

The employer then said, alright, I will not release her terminal benefits, so that I can replace the money that she had stolen. Wrong again, the courts said, there is no proof that she has stolen the money. The only way in which that could have been proven would be if the hearing had proceeded to finality and the employee found guilty and dismissed. But because she resigned, the hearing had to stop as it would not be possible to discipline a person who is not an employee anymore. This means that the employee resigned, as would any other employee and was entitled to her terminal benefits as per the employment contract and provision of the Law. If the employer felt strong enough about the matter and wanted to pursue it, they were at liberty to institute other court actions in order to recover the stolen money.

The reader will imagine the disappointment of the employer at that stage, he felt cheated, not only by the employee who had stolen from him but also by the system, his own policies, the Law and the courts which he felt must have protected him and not the alleged thief.

This story is the life of many employers in Lesotho who many a times have to deal with such situations, employees breaching standard of conduct and in the midst of or in anticipation of a hearing they hand in their resignations. There is no remedy for the employers at the workplace, beyond instituting other civil actions, yes, he can try that route but sometimes the employer may decide, is it even worth it?

South African courts, faced with a similar situation, decided to approach it in a different way. Next week we will share with you how they found a solution and whether it is a good solution or not, you will decide.

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