DID THE EMPLOYEE RESIGN OR NOT? by Christo Bester

South Africa’s labour environment is highly regulated. Every workplace is unique and employers must take care to manage labour relations in line with labour law. By acting inconsistently with legislation, even if it is accidently or unknowingly, employers put their businesses at risk, unnecessarily.

END OF THE EMPLOYMENT RELATIONSHIP
When the employment relationship is terminated, for whatever reason, it is very important that the employer ensures that the correct procedures are followed and the necessary supporting documentation is in place, should the employee refer a case to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The employment relationship can come to an end due to the following reasons:

• The employee resigns voluntarily.
• The employer dismisses the employee after following a disciplinary hearing procedure.
• The employer lays the employee off after following a retrenchment procedure.
• The permanent employment contract reaches the end date (retirement age) and expires.
• The fixed-term employment contract reaches the agreed end date and expires.
• The employee passes away.

ABSCONDING IS NOT RESIGNATION

Employers must take note of the fact that an employee cannot dismiss himself. When an employee absconds, it is a disciplinary offence and the employer must take the relevant disciplinary steps. The only way an employee terminates the employment relationship, is by resigning. Resignation can take place in two ways:

• Voluntary resignation – in writing

The employee submits a written resignation to the employer and there is no uncertainty regarding the resignation. It is also clear that the employee was not dismissed. Employers should, as far as possible, attempt to get employees to resign in writing.

• Voluntary resignation – verbal and/or clear action

When an employee resigns without confirming it in writing, it can create risk for the employer, because it is more difficult for the employer to prove that the employee was not dismissed. A recent court ruling in the labour appeal court, empowers employers to be able to accept a voluntary resignation that is not in writing, provided that the employer can prove that the employee’s action clearly and unambiguously indicated that the employee terminated the employment relationship voluntarily.

Examples of this behaviour may include:

• an employee who clearly verbally resigns and leaves the work premises thereafter;
• an employee who hands in the employer’s issued equipment and then leaves the work premises; and/or
• an employee who displays the above behaviour and then accepts employment with another employer.

RECORDS
To further protect the employer, we recommend that the employer records this behaviour of the employee and then confirms it in writing that the employer considers this action as a voluntary resignation and accepts it as such. Employers should be proactive and ensure that employment contracts, the disciplinary code, procedures, and policies are in place and that this documentation complies with applicable labour law.