In the work environment, when the time comes to leave the job where an employee currently works, certain laws govern processes and procedures on how to leave the company, whether it is by the employee’s own choice or that of the company to dismiss the employee. Below are some of the basic legal foundations of resignations, retrenchment and dismissal.

Resignation

Resignation is a unilateral decision by an employee to terminate their employment willingly with their employer. In our law a resignation contains two elements, namely:

1. The unilateral act of resignation and;
2. The requirement to give notice.

If the employee does not give proper notice, they will be in breach of their employment contract. It is thus important to refer to one’s employment contract and the terms thereof to ascertain what sort of notice is required.

The Basic Conditions of Employment Act (BCEA) provides for certain minimum notice periods ranging from one to four weeks depending on the term that the employee was employed for.

The BCEA further states that notice cannot run concurrently with any period of leave to which the employee is entitled under the BCEA (except sick leave).

Retrenchment

A retrenchment is the process by which an employer dismisses employees based on the operational requirements of the business.

The onus of proving that the retrenchments were done correctly and fairly lies with the employer. The employer is required to share with their employees (or their representatives) to be retrenched all pertinent information related to the retrenchment.

The employer is required to consult with the employees and should a consultation take place at an executive meeting without proper consultation with the employees, such a retrenchment will in all likelihood be an unfair dismissal.

Whether retrenchments are fair or not are dependent on both substantive and procedural fairness. Each case should be analysed on its own merits due to these elements.

Dismissals

Dismissals are frequently referred to as ‘firing’. As with retrenchments each case should be considered on its own merits and it is therefore difficult to indicate outright whether a certain dismissal is lawful or not. There are however certain procedure which an employer need to follow.

A dismissal is unfair if it is not effected for a fair reason, even if the employer complies with the procedural requirements.

Normally an employer should conduct an investigation to determine whether there are grounds for dismissal. This may be informal or formal, but needs to be in a form and language which the employee can reasonably understand.

The employee should be provided with the opportunity to state their case and should be provided with a reasonable time to do so.

The employee who is dismissed is entitled to reasons for the dismissal, and may request these in writing.

South African courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made by the employer to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings and not to just dismiss based on alleged reasons such as misconduct, poor performance or for health or injury.

Constructive Dismissal

If an employer makes the work environment unbearable for an employee and an employee is forced to resign as a result, this resignation is called a constructive dismissal.

In Pretoria Society for the Care of the Retarded v Loots the court started that the first test for constructive dismissal is whether there was no other motive for the resignation, in other words, that the employee would have continued with their employment had it not been for the employer’s conduct.

 In addition, in bringing such a dispute, it is for the employee to prove that the employer was responsible for introducing the intolerable condition, and for the employee to prove that there was no other way of resolving the issue except for resignation. It is not for the employer to show that they did not introduce any intolerable condition, this onus remains with the employee.

Again, each case needs to be assessed based on its own merits and the legal grounds need to be assessed.

Conclusion

If you feel as though you may have a case on any of the above, contact our offices to set up a consultation so we may assess your case on its merits to ascertain the strength of your case and whether proceeding with the matter is worthwhile.