31 October 2025
The question is often raised regarding the resignation of an employee who is facing disciplinary action, or who resigns before, during or after the disciplinary hearing. The question usually hinges on two issues: does the employee have the right to resign, if so, can he still refer a dispute of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA) after such resignation?
The answer is that an employee has the right to resign; they can tender a resignation at any time, provided it does not place them in breach of contract. Employees also sometimes resign in the face of disciplinary action before the hearing is concluded, then go to the CCMA alleging constructive dismissal; others resign during the proceedings; and still others resign after the verdict and finding have been handed down.
What then is the situation? Does the employee have the right to resign as above and then refer a dispute to the CCMA? Put differently, what effect does such a resignation have on the employee’s right to litigate?
Resignation before disciplinary action:
It is an increasingly frequent occurrence that, when an employee is faced with disciplinary action for an act of misconduct, the employee elects to resign from the employment before the disciplinary hearing takes place. In some instances, it has been known that the employee resigns, and then refers a dispute of constructive dismissal to the CCMA.
The constructive dismissal dispute is usually based on allegations by the employee that they are innocent of the charges, that they cannot accept being treated like a criminal by the employer, and that they have been defamed and therefore had no option but to resign. Constructive dismissal disputes of that nature will not succeed. In other instances, employees resign because they feel that a resignation sounds better than a dismissal. The question is, what are the options of the employer when the employee resigns, faced with disciplinary action?
There are no hard-and-fast rules laid down in labour legislation governing such matters. The Basic Conditions of Employment Act contains no provisions that prevent an employee from resigning when facing disciplinary action. Similarly, the Act contains no provision giving employers the power to refuse to accept a resignation.
Employees usually resign because they think that the resignation will make the allegations disappear and that the employer can prove nothing. Employees who resign and subsequently fail to appear at the disciplinary hearing must remember that it is then taken that the employee has waived their right to present a defence against the charges. The employee cannot then go to the CCMA and complain that they were dismissed without being allowed to present a defence.
The employer is fully entitled to proceed with the disciplinary hearing even if the employee has resigned. Employees must remember that when they tender a letter of resignation, it does not terminate the contract immediately upon handing the resignation letter to the employer. In some cases, the employee must provide the employer with the contractual notice period.
Employees should also remember that, in the face of allegations involving a criminal element, such as theft or fraud, or perhaps assault, the employer is still entitled to proceed with criminal charges, even if the employee has tendered a resignation.
UASA encourages employees to carefully consider the implications of resigning while facing disciplinary action. While the law provides every employee with the right to resign, doing so under pressure or without a complete understanding of the legal consequences may not always serve their best interests.
Consulting with legal representatives, particularly trade union representatives, can help employees fully understand their rights and options. Trade unions exist to protect and represent workers — ensuring that members receive fair treatment and that any actions taken are informed and appropriate.
Ref: www.labourguide.co.za www.uasa.org.za