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Disciplinary process against employee who has resigned?

Can a disciplinary process be carried on against an employee after he has resigned? This was the issue in the case of Coetzee v Zeitz Mocaa Foundation Trust and Another (C517/2018) [2018] ZALCCT 20; (2018) 39 ILJ 2529 (LC) (14 June 2018).

Mr Coetzee (“Coetzee”) was the executive director and chief curator of the Zeitz Museum for African art in Cape Town. Following allegations against him involving racial slurs and sexual harassment of junior members of staff, the Trust as his employer initiated disciplinary proceedings, by inviting Coetzee to make written representations about the allegations against him. The following day Coetzee handed in his resignation. The Trust insisted that Coetzee should continue working during the obligatory notice period, but he argued that he had resigned with immediate effect.

Coetzee lodged an urgent application in the Labour Court, to have the disciplinary proceedings already instituted against him declared unlawful and invalid; to obtain an interdict against any continued disciplinary action; and to have any such continued disciplinary action declared null and void.

Coetzee argued that he had tendered his resignation with immediate effect and that he was therefore no longer employed by the Trust. The Trust’s view was that Coetzee’s resignation was subject to a four-week notice period under Labour legislation, and that the Trust did not waive the right to receive notice. It also appeared that there was an unsigned employment agreement between the Trust and Coetzee, which made resignation subject to a six-month notice period.

The Labour Court found that Coetzee’s resignation was not accepted by the Employer as an immediate resignation. Coetzee had to continue working for the statutory four-week notice period. The Court decided that employees are subject to disciplinary proceedings during a notice period and can even be dismissed following such proceedings. Accordingly, Coetzee’s application failed.

This case shows that resignation does not exempt employees from disciplinary proceedings for misconduct, if the resignation is subject to a notice period and if the employer did not waive the right to receive notice. In such a case the employer can continue with proceedings instituted before resignation, or institute new proceedings during the notice period.

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