It is common practice to find employees resigning upon becoming aware of disciplinary proceedings against them in respect of alleged acts of gross misconduct. Resignation is employed to avoid summary dismissal which is the penalty for gross misconduct under most contracts of employment. It also denies the employer an opportunity to, as a matter of policy, address the alleged acts of gross misconduct and take appropriate sanctions against such employee as a deterrent. The legal question is, how should an employer deal with or react to the resignation by an employee during or in anticipation of disciplinary proceedings? Employers are keen to avoid payment of any form of terminal benefits to an employee who is guilty of gross misconduct or resigns in anticipation of disciplinary proceedings.

Does an employee have a legal right to resign in anticipation of disciplinary action?

The simple answer is YES! We note that in most cases where an employee resigns in anticipation of disciplinary proceedings, the resignation is usually with immediate effect. The right of an employee to resign with immediate effect is a Constitutional¹ right. The employee has an absolute and unfettered right to resign, and this right can be exercised at any point in the course of his employment.

Options of the employer where an employee resigns in anticipation of disciplinary proceedings?

Employers have reacted in different ways and forms to a resignation during and/or in anticipation of disciplinary...

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