Resignation is an Art
By Amien Hoosain
Coetzee v The Zeitz Mocaa Foundation Trust, a judgment of the Labour Court, Cape Town on 14 June 2018, dealt with the question whether an employee can avoid disciplinary proceedings by resigning with immediate effect.
On 15 May 2018, Zeitz Mocaa invited Mr Coetzee to make representations in respect of allegations of “serious misconduct in his capacity as Executive Director and Head Curator“. On 16 May 2016, Coetzee tendered his resignation in writing “with immediate effect“, but Zeitz Mocaa nevertheless convened a disciplinary inquiry. Coetzee then launched an urgent application for an order:
Mahlakoane referred a complaint of unfair dismissal to the CCMA, and the Commissioner ruled that the dismissal was unfair, as –
- – declaring the disciplinary proceedings unlawful, and interdicting the continuation and finalisation of the disciplinary proceedings; and
- – declaring that Zeitz Mocaa (as employer) had no jurisdiction to take disciplinary action after his resignation.
Coetzee argued that his employment by Zeitz Mocaa ceased immediately with his resignation on 16 May 2018.
Zeitz Mocaa argued that Coetzee was contractually/legally obliged to give four weeks’ notice, and that his employment would continue until the end of the notice period.
The Court held that:
When an employee gives notice of cancellation of an employment contract, the contract terminates at the end of the notice period.
When an employee leaves his or her employment without giving the required period of notice, the employee breaches the employment contract. The employer is then entitled either:
– to hold the employee to the contract, and to require the employee to serve the period of notice (which could include being subject to disciplinary proceedings during the period of notice); or
– to cancel the contract and to claim damages (if any can be proven) from the employee.
Of course, by consensus, an employer and employee can agree that a resignation with immediate effect will be accepted as such.
Coetzee lost. He could perhaps have achieved a better result through calm negotiation with Zeitz Mocaa.