As you know, labour law says you must ask your employee to confirm his resignation in writing.
But, do you know what the law says about employees who resign when faced with disciplinary action? Is this allowed?
The short answer is yes.
Your employee can resign prior to disciplinary action
Your employee has the right to resign at any time, as long as he's not breaching any part of a contract.
What if he claims constructive dismissal?
The Practical Guide to Human Resources Management explains that some employees resign when faced with disciplinary action and then refer a constructive dismissal dispute at the CCMA.
He'll argue that he's innocent, you're treating him like a criminal and he had no option but to resign.
Can he do this?
The answer is yes, as there have been cases like this in the past.
However, if he resigns and doesn't appear at the disciplinary hearing, he waives his right to defend himself against the charges. He can't then approach the CCMA and claim you didn't give him the opportunity to present his defence.
For example, you have an employee that's accused of defrauding the company; you might opt to suspend him with pay.
If he resigns before the hearing, doesn't appear at the hearing and is subsequently found guilty and dismissed, he's not likely to succeed if he refers a claim to the CCMA based on the fact you didn't give him an opportunity to present a defence. You did, but he chose not to use it.
Remember, the chairperson at the disciplinary hearing will most likely find the employee guilty because he hasn't defended himself.
If charges involve criminal intent, you can pursue criminal charges even if your employee no longer works for you.
Can your employee claim his pension benefits if he resigns before his disciplinary hearing?
Yes, and you can't refuse to pay!
Recently the Labour Court ruled that, since the reason for termination couldn't be linked to misconduct, the employer had to pay the employee his full termination benefits, including his pension benefits.
The bottom line: Your employee can resign prior to disciplinary action if he wants to. Just make sure you follow the legal procedure when dealing with his resignation.
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