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
Employment in South Africa – a relationship built on trust
The employment relationship between an employer and its employees is heavily regulated in South African law and there are [...]
Testing the reliability of breathalyser tests
and Nombulelo Bashe, Candidate Attorney Whilst employers regularly rely on the convenience and accessibility of a breathalyser test to determine [...]
Salary made up of commission: What rules apply?
Although South African labour law has a lot to say about minimum terms and conditions of employment, and pieces [...]
Sustainable housing: Navigating the legal landscape for a green and resilient future
One of the first principles recognised in the Paris Agreement[1] is the importance of "sustainable lifestyles and sustainable patterns [...]
Powers of the Information Regulator and how the Department of Justice could have avoided a R5 million fine
There has been great anxiety amongst organisations since the Protection of Personal Information Act 4 of 2013 (POPIA) came [...]
The extent of an arbitrator’s jurisdiction
In the recent decision of Dis-Chem Pharmacies Limited v Dainfern Square (Pty) Ltd & Others[1] the Supreme Court of [...]