Resignation during a disciplinary hearing

A client asked me if an employer is obliged to accept an employee’s resignation before or during a disciplinary hearing, when he (or she) is unsure of the outcome and would prefer to avoid a blemish of dismissal on his or her record.

An employer is not obliged to halt the process and accept the resignation. It has two options – to proceed with the enquiry or accept the resignation.

If an employee tenders his resignation during a formal process, it is important that the employer follows the correct procedure to ensure that the Company is not exposed to the risk of a personal grievance for constructive dismissal, or a referral to the CCMA.

Disciplinary procedures or investigations can be very stressful for employees and as a result they may make a decision to resign in the heat of the moment. In most circumstances it is best for the employer to first allow the employee some time to fully consider his decision to resign, by giving him a period of reflection (often referred to as a cooling off).  A period of at least 24 hours is recommended.

If the company accepts the resignation, it must draw up a full and final settlement agreement, recording the resignation and disposing of all disputes, and both parties must sign, preferably before two witnesses.