When an employee resigns in the face of disciplinary action
It is not uncommon for an employee to resign when he is faced with a disciplinary hearing. But what if he does not resign? Can you offer that the employee resigns instead of undergoing disciplinary action?
It is invariably uncomfortable when an employee faces disciplinary action which can lead to dismissal:
- The employer usually feels that the employment relationship has been seriously damaged.
- Even if the employee is found not guilty, or there is insufficient reason for dismissal, the future employment relationship is likely to be more strained than before.
- The employee, on the other hand, may not want to risk having a blemished record.
So why not avoid all of the above by offering the employee the opportunity to resign?
This is indeed what happened in a recent CCMA case.
In this matter, there was good reason to believe that one of the company’s senior employees was conducting another business - against company rules. Before bringing disciplinary charges, the employer decided to confront the employee with the choice either to resign or face a disciplinary enquiry.
The employee chose to resign and the employer requested him to put the fact that he had decided to resign, of his own accord, in writing.
When he handed in his written resignation, the employee packed his personal possessions and left the employer’s premises. He apparently later regretted the decision and referred the matter to the CCMA, claiming that he had been constructively dismissed. He alleged that:
- He felt intimidated by the choice given to him and said that he had made an emotional decision.
At the time, he felt that he did not want to blemish his record. He did not have any confidence in the dispute resolution mechanism.
The CCMA commissioner concluded that the employee had made a clear choice and that there was no basis for his argument that the choice he had been offered had been intimidating. The employee had made a choice and the employer did not make continued employment intolerable. This was not constructive dismissal.
An employer is not bound to follow the disciplinary route when he deals with serious misconduct
This CCMA case confirms this. It does not, however, give employers free reign to jostle employees into resigning as an easy way out.
Consider the long-term impact of asking your employee to resign
Before you offer an employee the choice to resign, consider the impact this might have in the longer term - especially where the misconduct involves dishonesty in one form or another. If it does, you will be unwittingly condoning the employee’s behaviour and setting a precedent for similar cases in the future.
To avoid a situation like this occurring, make the offer of resignation stem from either:
- Poor performance;
- Ill health; or
- Incompatibility.
Follow these two pointers if you want to offer an employee the choice to resign
1. Only offer an employee the chance to resign if you have convincing evidence that he has committed an act of serious misconduct.
2. If you do decide to offer an employee the chance to resign instead of facing disciplinary action, keep in mind that his choice to resign may be influenced by a number of factors, such as:
- How senior the employee is;
- What has happened previously in the employment relationship, e.g. is this his first offence?
- Did the employee know what would happen if he made this decision?
- How did you put the choice to resign to the employee? Tell the employee that if he does not resign he could face a disciplinary hearing. Tell him that he could be fired depending on the outcome of the disciplinary hearing.
Important: Do not give your employee the option of resigning if you are not sure if his choice will be truly voluntary. As a rule of thumb, ask if he will ultimately benefit from resigning.
