M v Nedbank Ltd (J2211/09) [2010] ZALC 216; (2010) 31 ILJ 1453 (LC) (16 April 2010) per K Tip AJ.
Resignation taking immediate effect may be regarded by employees as a convenient way to avoid having to face a disciplinary investigation concerning allegations of serious misconduct. In a case that appears to have been largely overlooked, the Labour Court refused to prevent a bank from investigating such allegations after a summary resignation by a senior bank manager who had many years service. Presumably the employee wanted to thwart any attempt to investigate the allegations.
The evidence showed that a ‘Register of Employees Dishonesty System’(Reds) was created in the mid-1990s to promote responsible, competitive and profitable banking. All members subscribe to a Code of Banking Practice that aims to cultivate ethical practices within the industry. There is a centrally maintained database which records the names of all dismissed employees in the banking industry where the reason for dismissal is related to dishonesty. It also provides a resource to enable participating banks to screen prospective employees.
It was argued on the manager’s behalf that having resigned with immediate effect he could not be dismissed as he was no longer an employee. He argued that an essential REDS requirement could not be addressed. There was an anomaly in that the manager insisted that he was no longer an employee but applied to the Labour Court where he is usually required to prove that he is an employee or has been dismissed.
The Labour Court stated in para [14]:
Nowhere in these provisions is a peg to be found for the proposition that this Court can deal with a post-termination hearing in circumstances where the applicant himself contends that such hearing should not take place precisely because an employment relationship is no longer in existence. As was pointed out by Mr Myburgh, for Nedbank, the applicant has not raised any allegation that an entrenched constitutional right has been or will be violated. He similarly pointed out during his argument that the applicant has alleged no reliance on section 77(3) of the Basic Conditions of Employment Act 75 of 1997 (‘BCEA’). Notwithstanding that these points were thus pertinently raised during argument, applicant’s counsel offered no suggestion in his replying address that any of those provisions should indeed be applied to his case.
Finally the Labour Court held in para [19]:
In this case, the applicant’s departure point for his approach to this Court is that the employment relationship between him and Nedbank is entirely at an end. Although it appears that he has referred a constructive dismissal dispute to the CCMA, that does not alter the essential fabric of his present application. The main thrust of Nedbank’s defence corresponds. The composite result of this is that the applicant finds himself without a jurisdictional niche in the LRA and without any recourse to the BCEA. Accordingly the preliminary point raised by Nedbank that this Court does not have jurisdiction over the applicant’s claims must be upheld. There is no reason why costs should not follow the result.
Although the issue was not argued in the case it is debatable whether a summary resignation ends the employment contract. Some argue that it does not, because it must be conditional on a valid notice period. Halton Cheadle AJ thought otherwise in a judgment delivered by him a few years ago – see Resignation: Differs from notice period and the Comments thereon.