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Can you refuse to accept resignation before disciplinary action?
19th Mar 2012 at 9:59 am #37946
In this week’s Mail & Guardian Transnet Board Chairperson Mafika Mkwanazi is reported as saying that: “… the company was investigating changing its policy to prevent employees resigning if they were under investigation or implicated in any form of financial mismanagement.” Question: can an employer refuse to accept a resignation?
Certainly in “the old days”, it was practice to “accept” the resignation. However, subsequent court decisions have indicated that the employer does not have the power to “accept or reject” a resignation.
What the employer does have is the power to refuse to accept a withdrawal of a resignation. That is, once the resignation is given the employee has terminated the contract from their side – that is within their rights. If the employee changes their mind, there is no obligation on the employer to accept a withdrawal of notice.
But back to the point, even if the employer could refuse to accept a resignation, would we want that to happen in a parastatal or state department? Given the amount of money wasted while employees are on “gardening leave” or suspended pending further investigation or an enquiry, surely we would rather just let the employee leave?
The rationale for the refusal was that employees would find work in another government department, and we don’t want persons potentially implicated in financial mismanagement moving to another department. Well, wouldn’t the HR people responsible for recruitment conduct reference checks? Then surely, they would find out that the individual had resigned prior to a disciplinary enquiry? The applicant would then be asked to explain why they resigned prior to a disciplinary enquiry. Or am I missing the point? What do members think?
19th Mar 2012 at 10:18 am #37950
This is an interesting discussion. Yes indeed I tend to fully concur with your sentiments. But interesting issue is what happens if an employee has transgressed a rule and realising that he may be dismissed, he decides to hand in a resignation with immediate effect? Can someone suggest any case law for this.
20th Mar 2012 at 9:51 am #37949
What would the position be if the Employer accepts the resignation and explains to the Employee that due to the fact that he / she has resigned prior to the set down disciplinary hearing, the said matter would now be handled outside of the company / parastatal / stae department and a formal charge would now be laid with the SAP or alternatively the alleged losses will be claimed in a civil suit???
20th Mar 2012 at 9:54 am #37948
An employee would be required to hand in a resignation with a notice period as per his/her contract of employment in theory, but that is mostely far removed from fact. Situations like these usually places management in a conundrum that if they just accept the resignation, then the chances of litigation would be little and constructive dismissal arguments would be futile. This would then be an easy way out for both parties.
During this resignation period, the employee is still employed and is subject to the Company’s codes and procedures, more specifically the disciplinary code and procedure. The Company could therefore still initiate disciplinary action and then deal with the outcome as given.
In most circumstances the employee would either give immediate notice of resignation or do not return to work. This then becomes a complete different process as it is seen as either absconsion or breach of contract.
The onus on prospective Employers are becoming more and more onerous to ensure that all references are checked and double checked. Just because a person left out a reference or employer would not automatically result in misrepresentation.
20th Mar 2012 at 10:06 am #37947
Thanks for your responses. Yes, there seems to be the two sides to this – the disciplining employer and the potential future employer.
As the employee is still bound by the notice period, the employer needs to make sure that they commence the disciplinary action quickly – if the employee then just stays away, the dismissal could potentially be for absconding and for refusing to attend the disciplinary enquiry.
If the employee has been dismissed for absconding, and the recruiting employee asked the reason for leaving, would it be possible that the employment contract could contain a clause that the contract could be terminated/reviewed depending on the outcome of the previous employers investigation?
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