Over the past few weeks, I have had several clients experience issues with resignations or pending resignations.
Once an employee enters an employment contract a resignation is the only mechanism they have at their disposal to terminate the employment contract.
First and foremost, if an employee indicates they are resigning ensure that you get the resignation in writing. If they are troublesome employees going off about how they intend to resign present them with a notepad and say “Can I have that in writing please”. The Basic Conditions of Employment Act requires a literate person to present their resignation to the employer in writing. Having a written resignation also prevents a later dispute where the employee claims that he did not resign.
If an employee has tendered their resignation and wants to retract it, the employer is under no obligation to entertain the retraction. In terms of the law a resignation is seen as a unilateral act, which means the employee does not require the employer’s permission for the resignation to take effect , and therefore, after the resignation is tendered what’s done is done and an employee does not have the right to return or retract it. My advice would be to acknowledge the resignation in writing as soon as possible after it is received.
Very often when faced with a disciplinary enquiry employees quickly tender their resignation with immediate effect. Again the employer is not obliged to accept the resignation without notice. The employer can insist that the notice period remain in effect and the disciplinary hearing continue. Even if the employee does not present themselves to work the employer can continue with the disciplinary hearing in their absence. This may seem like a lot of energy to waste when the employee is already wanting to leave. In cases of serious misconduct such as theft, fraud and sexual harassment you may want to set a precedent that sends a message to other employees that one does not merely get away with running from the problem.
What recourse do you have when an employee resigns with immediate effect and leaves for another job without working their requisite notice? Very little can be done here, labour law does not have a remedy for this disloyal behaviour. Some employment contracts are drafted with a clause stating that the employer will not pay the employee accumulated leave out in lieu of notice not worked. This is a controversial practice that is usually practised in the hospitality industry and experts are divided as to whether it’s permissible or not. My personal opinion is if it was permissible to take an employee’s leave in lieu of notice the Act would have allowed for such. The Act states an employer needs to pay an employee’s accumulated leave to them upon termination. The other recourse is to sue the employee for damages ,however, damages need to be proved and this could result in a lengthy civil litigation battle. A new school of thought is to include a damages clause upfront in employment contracts that should an employee fail to work their notice period they will pay the employer a set amount recommendations are that it should equal a month’s salary, a controversial move.
Sometimes an employer would prefer the employee not to work their notice, and an example of this is when your employee is leaving to your opposition. It’s not ideal having the employee around with ample time to access your company’s proprietary information. In such instances, an employer can ask the employee to leave early but will be required to pay the employee in lieu of the requisite notice that was to be worked.
If an employee asks to work a shorter notice period and you agree, ask them for the request in writing. Have a written agreement drawn up to the effect that it was a request by the employee and that you as the employer agreed to the shortened notice period. An agreement protects you as the employer from a later dispute regarding not paying the requisite notice.
If you have any staff or labour law issues feel free to call me for a chat, rather make an informed decision than land in hot water either at the CCMA or with The Department of Employment and Labour.
Call 087 073 6940 or 083 305 6219 for assistance from Infinity HR Consulting.