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A common occurrence in the employment relationship is for an employee to resign in the face of disciplinary action by an employer, and South African courts have previously accepted that as long as an employee resigns with immediate effect, the employer has no power to compel the former employer to go through any disciplinary process.
The Labour Court in a recent judgment, Mthobisi Mthimkhulu v Standard Bank of South Africa (J928/20) (18 September 2020) considered whether an employee who has been found guilty of serious misconduct can avoid the ultimate sanction of dismissal by resigning before the employer imposes the sanction.
In a recent judgment, Gold One Limited v Madalani and Others (JR 1109/15)  ZALCJHB 180 (9 September 2020), the Labour Court confirmed that intolerability is a high threshold in constructive dismissal matters. Intolerability is more than a working environment or working under employment conditions that are difficult, unpleasant or stressful.
Employment contracts always include a notice period should an individual decide to resign. Typically, South African workers must give a calendar months’ notice when they decide to part ways with their employer, but what happens in the case of resignation with immediate effect, especially when there are pending disciplinary actions?
It is trite law that certain prescribed periods of notice become applicable upon termination of any employment relationship between an employer and an employee. These periods are governed by statute and the individual employment contract. However, notwithstanding this, there is uncertainty in our labour law about the position where an employee resigns with immediate effect in the face of a pending disciplinary enquiry.