Resignation in the face of disciplinary action

In South African Medical Association Trade Union obo Rikhotso v MEC: Department of Health, Limpopo Province and Others [2023] 6 BLLR 575 (LC) an employee who was employed as a medical doctor resigned in the midst of facing disciplinary action. 

A disciplinary inquiry had been convened, which related to a charge that he had incited other employees to participate in an unprotected strike. 

The disciplinary inquiry commenced on 28 June 2022 and was concluded on 30 August 2022. While awaiting the outcome of the disciplinary inquiry the employee resigned and accepted a position at another hospital. 

On 1 November 2022, he resigned subject to his 30-day notice period. His employment would accordingly terminate at the end of the notice period on 30 November 2022. 

On 18 November 2022, the employee was advised that he had been found guilty of the charge against him and that the sanction was dismissal. 

On 25 November 2022, the employee appealed this decision. 

He was advised that the record of dismissal on the PERSAL system would be reversed pending the outcome of the appeal process. He was also informed that his removal from payroll would be revoked, and his notice period would be extended pending the outcome of the appeal. He was then instructed to continue rendering his services until the outcome of the appeal.

The appeal was unsuccessful, and the dismissal was upheld. 

The employee then approached the Labour Court (LC) on an urgent basis seeking an order that the extension of the notice period was unlawful. 

He also sought an order that the employer be directed to remove his name from its PERSAL system and to have the dismissal record expunged from his personnel file and for the records to instead reflect that the termination of his employment was by virtue of his resignation.

The LC found that it had jurisdiction to determine this dispute by virtue of  s 77(3) of the Basic Conditions of Employment Act 75 of 1997 as the dispute concerned a contract of employment.

As regards the unilateral extension of the notice period by the employer, it was held that a resignation is a unilateral act that does not require acceptance by the employer. 

It is, therefore, not possible for an employer to unilaterally extend the notice period as the notice period is determined by the contract or statute and the employment relationship terminates at the end of the notice period. 

It was accordingly held that the extension of the notice period was unlawful as there was no legal basis for the employer to extend the notice period.

The LC then also considered whether there was any basis to grant an order that the employer must expunge the record of dismissal from its records and found that there was no basis in law for this. 

The basis of the employee’s argument in this regard was that although he was issued with the sanction of dismissal during his notice period this sanction did not stand at the time of the termination of his employment as he had appealed the sanction. 

It was held by the LC that it is a well-established principle that an employer may still summarily dismiss employees during their notice period. 

It was found that the employee had confused the existence of the dismissal with the implementation of the sanction. 

In this regard, the appeal against the sanction simply delayed the implementation of the sanction but it did not have the effect of expunging the sanction from the personnel records. 

It was found that during an appeal process the sanction remains on record, but the implementation is suspended until the outcome of the appeal and the sanction would only be expunged from the employee’s record if the appeal is in fact upheld. 

It was held that the employee was dismissed during the notice period and, therefore, the dismissal terminated the employment contract. 

It was found that the order that the employee was seeking was an attempt to conceal the dismissal. 

While the employer had unlawfully extended the contract until the appeal was concluded this did not change the fact that the employer had summarily dismissed the employee during the notice period.

The application was dismissed with costs on the basis that costs should follow the result, save for in exceptional circumstances.

Monique Jefferson