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
The PAIA and POPIA dichotomy: What information are you requesting?
Promotion of Access to Information Act, 2 of 2000 We have received numerous queries from clients seeking advice on attending [...]
Security for costs – A White Elephant? A Chimera? Pie in the sky? …On any basis a Herculean task
Security for costs In the recent case of McHugh N.O. & Others v Wright [5641/2021) [2021] ZAWCHC 205 (19 October [...]
Merger approval without a specific acquiring or target firm
Merger approval The Competition Act 89 of 1998 ("Competition Act") and Commission Rules[1] contain review provisions that establish a mandatory [...]
Data protection impact assessment required despite “Might of the State”
Kenyan High Court Introduction On 14 October 2021, the Kenyan High Court declared the collection of biometric information and the [...]
Relief from oppressive or prejudicial conduct in terms of the Companies Act 71 of 2008
Section 163 of the Companies Act 71 of 2008 In any corporate environment, the authority of the board of directors, [...]
Domestic Violence: New definitions you should know
by Dakalo Singo, Director and Head of Pro Bono Practice Domestic Violence Amendment Bill Introduction The annual "16 Days of [...]
