Legal updates and opinions
News / News
Banking on a resignation with immediate effect? Don’t count on it!
by Sandile July, Director and Lisa Appelgryn, Senior Associate: Labour & Employment Practice
- The Labour Appeal Court (“LAC“) in the matter of Standard Bank of South Africa Ltd v Nombulelo Chiloane (case no. JA85/18) has clarified the issue of the effect of a resignation with immediate effect in the midst of a pending disciplinary hearing.
- The Constitutional Court, in the matter of Steenkamp & Others v Edcon Ltd (National Union of Metalworkers of SA intervening) made the following statement obiter:
“Except where summary dismissal is warranted, the unilateral act of the employer in terminating the contract, whether by notice or other conduct, does not without more bring an end to the contract of employment. The same applies to an employee who gives short notice in violation of the contract: he or she may be obliged to serve out the notice period. In neither case does the unlawful repudiation of the contract have to be accepted by the other party“. - The LAC relies on this obiter dictum and concludes that if the contract provides for a notice period, the party that seeks to withdraw from the contract must give or serve the requisite notice. The provisions of the Basic Conditions of Employment Act No. 75 of 1997 (“BCEA“) will apply in circumstances where the contract of employment does not make provision for a notice period.
- In light of the above, an employee will not be able to escape the disciplinary process by tendering a resignation with immediate effect. The essence of the judgement is that there exists no such thing as resigning with immediate effect in the employment context, unless the employer waives the notice period. Notice must be served or given either in terms of the contract of employment or in terms of section 37 of BCEA.
Latest News
Update: Temporary Employer / Employee Relief Scheme (“TERS”): The May application process
by Jacques van Wyk, Director; Andre van Heerden, Senior Associate; and Thabisa Yantolo, Candidate Attorney On 28 May 2020 the [...]
Is my business insured?
by Walid Brown, Director and Elzaan Haynes, Candidate Attorney We all take out insurance to cover everything from our homes [...]
Royal IP continued
by Donvay Wegierski, Director We have previously written about Prince Harry and Meghan Markle stepping down as "senior royals". The [...]
COVID-19 and online precautions for brand owners
by Donvay Wegierski, Director As the world heeds the call to stay at home and flatten the curve our online [...]
Specifications and bad faith – The CJEU Skykick ruling
by Donvay Wegierski, Director As trade marks are classified in classes according to the relevant goods and/or services, trade mark [...]
Discovery vs Liberty – When is use of a trade mark an infringement?
by Janine Hollesen, Director Various Discovery companies took Liberty Group Limited ("Liberty") to court over Liberty's use of Discovery's VITALITY [...]
