Please note that this pertains to South African Labour and Best Practice requirements.
So you caught the staff member ‘red-handed’ with his fingers in the till! You’ve (for once) followed all the procedures and you have issued him with a notice to attend a disciplinary hearing and you can’t wait for this to happen so that justice can be served, in your favour for once, and then . . . he hands in his resignation! Talk about frustration! Been there? Yes of course you have. Then to add insult to injury you are sent a notification by the CCMA stating that the employee has laid a ‘constructive dismissal’ charge against you . . . now what?
Ok, let’s take a step back and have a look at this one step at a time.
Firstly, it is the absolute right of the employee to tender their resignation at any time, except if that resignation is in breach of a contract – in that instance the employer will obviously have recourse.
There will always be those employees that would rather resign than face a disciplinary hearing, and then there are those who will resign during the hearing and even those who will resign once the verdict has been delivered.
The problem arises, not when the resignation is handed in (although I must admit that that can be pretty frustrating) but rather when the employee then goes to the CCMA.
Let’s bring in the protagonists!
Mike owns a retail outlet in a Mall. George is the Manager of said retail outlet. George has been caught “red-handed” stealing stock out of the store and selling it on the side, and of course, pocketing the money. Mike has suspended George, pending a disciplinary hearing, and given George notice to attend a disciplinary hearing, with the obligatory 48 hours notice. The day of the hearing arrives, so does George, with his letter of resignation. Mike accepts the resignation, with immediate effect and George is paid out his leave pay, etc. and off he goes. End of story – well not quite, you see George goes to the CCMA and alleges that it was a constructive dismissal.
In this particular instance, the CCMA found that since George had resigned and that Mike had accepted his resignation, this had in fact amounted to a settlement between the two.
You see, George had resigned rather than wait to be dismissed. This would mean that George’s record would not indicate that he had been “dismissed” and would therefore appear to be unblemished. This was an informed choice, made by George, therefore George now was not entitled to “seek relief by way of reinstatement or compensation” – talk about having your cake and eating it!
On the one hand, George did not want to face a disciplinary hearing, which he knew would result in the termination of his employment, because of his dishonesty, because he did not want the “dismissal” on his employment record, and on the other, he wanted compensation from Mike because he now no longer had a job. Having made his choice to have the unblemished record, George could not claim to be entitled to both the unblemished record and compensation.
What George has not taken into account though, is that although he “resigned”, this does not necessarily look better on his record, because Mike has followed the correct procedures. All the details of the alleged offense (in this case theft) and the details of what occurred will still be on file.
Although Mike did not get the satisfaction of having George dismissed at a disciplinary hearing, Mike still has the right to proceed with criminal charges, even though George has resigned and is no longer employed by Mike. Obviously, whether Mike wants to go this route or not is entirely up to him.