September 2018 | Employment Law
You want to charge one of your employees with serious misconduct so you institute disciplinary proceedings. To avoid a possible dismissal the employee resigns “with immediate effect”.
Can you go ahead with disciplining the employee? Until recently the answer was no, the Labour Court having decided in such a matter that immediate resignation brings an end to the employment relationship and puts the employee beyond your reach.
Employers will be relieved to know that a new Labour Court decision has reversed that.
Looking for a loophole
- The Executive Director and Head Curator of an art museum was invited by his employer to “make written representations in respect of allegations of serious misconduct”.
- He supposedly then resigned immediately and without notice, and asked the Labour Court to hold that his employer no longer had any jurisdiction to discipline him, and to interdict his employer from doing so.
- The Court refused, holding instead that –
- An employee’s contract of employment comes to an end only once his/her resignation takes effect at the end of the applicable notice period (four weeks in this case).
- It is up to the employer whether or not to accept an immediate resignation, force the employee to serve the period of notice, cancel the contract and claim damages, reach another agreement, or waive all its rights.
- On the facts, the employer in this case had not accepted the “tender of notice” as an immediate resignation, and so it still had the right to proceed with disciplining the employee before the end of the notice period.
The employee’s attempt to find a loophole having thus failed, he must now face his disciplinary hearing and presumably, if found guilty, the possibility of dismissal for misconduct.
The bottom line for employers
If you want to proceed with disciplinary action be careful to unequivocally reject any attempt at immediate resignation. Then move quickly before the end of the notice period terminates the employment contract. As always take proper legal advice on your particular matter – the complexities and pitfalls inherent in our labour laws make it very unwise not to do so.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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July 2018 | Employment Law
A recent Labour Court decision shows how dangerous it is as an employer, when attempting to dismiss an employee, not to draw a clear distinction between misconduct and incapacity.
Disciplined for depression
- An employee, whose track record had originally been an excellent one, was charged at a disciplinary enquiry with four charges of misconduct –
- Unauthorised absence from work for 17 working days,
- Failure to inform his manager of his absences in accordance with company policy,
- “Gross insolence” in the form of turning his back on his manager when talking about his absenteeism,
- Refusal to obey a “lawful and reasonable” instruction.
- He was summarily dismissed after being found guilty of all the charges.
- He then asked the Labour Court to declare his dismissal unlawful on the basis that although his conduct was as charged, it was caused by his state of depression. He had been diagnosed by two doctors for depression and prescribed anti-depressants. Moreover a clinical psychologist recommended he be granted sick leave as he was suffering the symptoms of a burnout and “reactive depression”, and was close to an emotional breakdown.
- He blamed his depression on his personal and financial problems, and on workplace stress related to his management’s reaction (and inaction) when he asked for help. For example, he was denied a salary increase and performance bonus and said he felt betrayed when his manager appeared on behalf of his wife in his divorce.
- The Court, finding that depression is a form of mental illness and that the employee’s conduct was inextricably linked to his mental condition, held that the employer had a duty to institute an incapacity enquiry rather than a disciplinary one. Furthermore, knowing that the employee was a person with a disability, the employer “was under a duty to reasonably accommodate him”.
- In all the circumstances the Court found that –
- The dismissal was automatically unfair in terms of the Labour Relations Act, and
- The employee had suffered unfair discrimination in terms of the Employment Equity Act.
The hard lesson for employers
The end result is that the employer must –
- Reinstate the employee with full retrospective effect,
- Pay him an additional six months’ salary as compensation,
- Pay his legal costs.
Mental health issues are perhaps not always as easily understood as physical ones, but they can both amount to incapacity and in both a little bit of empathy will go a long way. Moreover specific legal rules apply as to how you should proceed, and even if you suspect malingering it’s vital to act fairly and in accordance with procedure.
Take specific advice before you do anything as the penalties for getting this wrong will be severe – our courts are not gentle with employers who contravene our labour laws, particularly in cases of automatic unfairness and unfair discrimination.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
