DBM Attorneys: Resignations with ‘immediate effect’
Question: I am a woman aged 26. I have been working for my employer for two years. Now I have to relocate to another province immediately. I want to know whether it is possible to resign with immediate effect and what are the implications thereof.
DBM’s Vernorene Smith answers:
“No! A relationship of employment is governed by a contract between the employer and the employee or laws governing employment and, in most cases, both.
If the employment contract does not expressly deal with notice to terminate, then the Basic Conditions of Employment Act (BCEA) will apply.
If an employee resigns, Section 37 of BCEA determines that the employee must serve the required notice.
In the matter of Standard Bank v. Chiloane, the Labour Appeal Court dealt with an employee who handed in her resignation letter with ‘immediate effect’ pending a disciplinary hearing.
The employer proceeded with a disciplinary hearing, and the employee was dismissed.
The employee argued that her dismissal was unfair because she submitted her resignation letter with immediate effect; therefore, no employee-employer relationship existed.
The Court held that the employee’s resignation with ‘immediate effect’ did not comply with the employment contract that governs her employment relationship and that the employer was correct to consider the four-week notice period in the employment contract and to proceed with a disciplinary hearing.
It is therefore a misconception that the notice of termination by way of ‘immediate effect’ automatically releases the employee from their contract.”
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