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
Prescription of claims: on-demand loans
A loan which is repayable on demand becomes due the moment it is advanced to the debtor. Accordingly, such a [...]
South Africa’s Business Rescue regime – firing on all cylinders?
The downturn in world economies has placed business under severe pressure in the last few years. In South Africa, the [...]
Tax amendments – 2016
INTRODUCTION The Taxation Laws Amendment Bill, 2015, the Tax Administration Laws Amendment Bill, 2015 and the Rates and Monetary [...]
The dismissal process
ISSUE When does a dismissal take place and what must be shown to prove that fact? COMMISSIONER'S DECISION [...]
QUO VADIS – business rescue or liquidation?
Going under business rescue is proving to be an increasingly attractive option for South African companies that are in financial [...]
The special voluntary disclosure programme: an update and some practicalities and predicaments
By: The Werksmans Tax Team The Special Voluntary Disclosure Programme (“SVDP”) kicked off on 1 October 2016 and runs until [...]
