Finally, the labour appeal court, in Standard Bank of SA Ltd v Chiloane (‘Chiloane (LAC)’) (2021) 32 SALLR 11 (LAC); (2021) 42 ILJ 863 (LAC) had to determine whether or not an employer has the right to proceed with a disciplinary enquiry during a notice period when an employee terminates his or her employment in breach of a term requiring notice – what were the considerations and why are they relevant for future scenarios like this? What is the true effect of a resignation? What are the consequences of the requirement to give proper notice when resigning? What are the consequences of non-compliance with the contractual notice period when resigning? When does resignation take effect?
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The answers to the above questions can be summarised as follows:
What is the effect of a resignation?
- a resignation is a unilateral termination of the contract of employment
- the employer does not have the right to refuse or accept a resignation
See Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC); Toyota SA Motors (Pty) Ltd v CCMA and Others [2016] 3 BLLR 21 (CC)
What are the requirements in respect of giving notice when an employee resigns?
- compliance with the statutory requirements is required – the employee is required to give such statutory notice and serve such statutory notice period (subject to same also being contractually regulated)
- compliance is also required with the contractual notice period – in addition to the above statutory minimum
- however, parties may waive the statutory or contractual notice period and, in such circumstances, the employee would be free to leave the employ of the employer
See Naidoo and Another v Standard Bank SA Ltd and Another (‘Naidoo’) (2019) 30 SALLR 183 (LC); (2019) 40 ILJ 1589 (LC) and Chiloane (LAC)
What are the consequences of non-compliance with the required notice periods?
- the employee breaches the employment contract and normal contractual principles are applicable
See Vodacom (Pty) Ltd v Motsa and Another [2016] 5 BLLR 523 (LC) and Chiloane (LAC)
- in terms of such contractual principles, the following options exist for the employer:
- the employer may hold the employee to the contract and seek an order of specific performance to serve the notice period – the court will exercise its discretion in this regard, but, as a general rule, such order is not granted
See Masetha v President of the Republic of South Africa 2008 (1) SA 566 (CC) and Nationwide Airlines (Pty) Ltd v Roediger and Another [2006] JOL 1722 (W)
- alternatively, the employer may accept repudiation, cancel the employment contract and claim damages
See Vodacom (supra)
When does resignation take effect?
- where the resignation is in compliance with statutory and contractual obligations, same takes effect at the end of the notice period (see Vodacom (supra) and Chiloane (LAC))
- in the scenario where there is non-compliance with such notice periods, the following principles have been established:
- the employer has the right to discipline the employee during the defective notice period (Chiloane (LAC))
- contrary to Naidoo (supra) wherein it was held that the employer has no automatic right to discipline during such notice period and can only do so if an order is obtained from the labour court for specific performance, the labour appeal court, in Chiloane (LAC), held the viewpoint that such order of specific performance is not required and an employer has the right to discipline in such defective notice period on the basis that, into the immediate resignation notice, the required correct notice period ‘must be read into’
