In Mthimkhulu v Standard Bank, the Labour Court recently dealt with the question: can a disciplinary hearing continue if an employee resigns?
The issue arose in an urgent application heard by Moshoana J. Mr Mthimbulu, an aspirant advocate, was employed by Standard Bank. He was charged with misconduct and a disciplinary hearing was initiated. Before the outcome of the disciplinary hearing, he submitted his summary resignation. The bank did not recognise the resignation as effective, and it continued with the proceedings, dismissing him.
The question that arose was whether the bank was entitled to do this, or whether the summary resignation prevented this.
The court found that the bank was entitled to continue with the disciplinary proceedings despite the summary resignation.
The court laid down the following principles:
- An employee who is contractually obliged to serve a notice period, repudiates the employment contract when he does not serve the notice period and indicates an unequivocal intention no longer to be bound by the contract without lawful grounds. A summary resignation (i.e. a resignation without notice) is a repudiation.
- In law, such a breach / repudiation does not end the employment contract, and an aggrieved party (in this case, the bank) has as a right in response thereto to accept or reject the repudiation. It may make an election either to cancel the employment contract and sue for damages or seek specific performance.
- It is only if the aggrieved elects to cancel the employment contract, that the contract is brought to an end.
- If the aggrieved party does not do so, the employment contract continues and the employer may proceed with disciplinary action.
- The aggrieved party is not required to approach the court for an order of specific performance in order to keep the contract alive.
Read a copy of the Mthimkhulu v Standard Bank Labour Court judgment here:
Mthimkhulu v Standard Bank
