To resign or wait to be fired?
What happens when an employee resigns in the middle of a disciplinary process against them? Should the employer accept the resignation or proceed with the disciplinary process and probably terminate the services of the employee or dismiss the employee summarily if found guilty?
In order to answer this, we need to first understand resignation. Resignation in other words is one way of terminating an employment contract. Most Contracts indicate that a certain notice period needs to be provided by either party upon termination of employment; usually 7days during the probation period and a minimum of one month after probation. Additionally, Part VI, Section 36 of the Employment Act 2007 states that ‘either part can terminate an employment agreement without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given…..’ In simple terms, an employee can resign with immediate effect or choose to give and serve the notice as agreed upon in their contract.
In the case where an employee is involved in a case of misconduct and an employer initiates a disciplinary process against them, some employees may choose to exit through immediate resignation especially when they foresee that the odds are against them. It is very rare for an employee to give notice in this circumstance since giving notice would mean the employer will have to speed up the disciplinary process and make a decision. The bone of contention therefore is, should the employee accept the resignation with immediate effect during a disciplinary process or not?
The thing is this, once an employee tenders their resignation letter with immediate effect, the employer looses control over that employee. That relationship is over! It does not matter whether you respond to their letter formally or not. That employer is no longer yours. Refusing to accept a resignation letter in writing does not change the status of the resignation. In effect then, you cannot summon an employee who has resigned from employment already to a disciplinary hearing just because the process already began when they left. Again remember, this is no longer your employee. Thirdly, you cannot dismiss this employee summarily for gross misconduct even if your investigations reveal that thy were guilty. For the third time, this employee is no longer your employee at this point. However, if the employee had given notice upon resignation and the disciplinary process was on going, nothing stops an employer from summarily dismissing them if they are found to be guilty by the process thus disregarding the resignation letter that had been submitted. You are still an employee of that company during the notice period. It is in order though to just acknowledge receiving the resignation letter while issuing them with the summary dismissal letter.
In my opinion, employers will refuse to formally accept an employee’s resignation in this case because of a few reasons; it’s an ego thing or they just can’t bring themselves to accept that the employee beat them to the punch. In reality though, you could ask yourself, ‘what legal authority do you have over a person who is no longer in any agreement with you?’. It is the same case when an employer decides to dismiss an employee on grounds of misconduct and after receiving the summary dismissal letter, the employee proceeds to write their own resignation letter. The resignation is not valid, it has been overtaken by events.
What I would recommend to an employer who finds themselves in this situation is to acknowledge the letter of resignation formerly and in their response, remind the employee of the facts of the misconduct case that was underway when they left. In instances where there would be a potential surcharge, the employer can still surcharge the employee of any lost or damaged items without the fear of double punishment. In any case, it is the employee who voluntarily resigned from company.
Finally, I wish to emphasize that under the circumstances under analysis, an employee still does not loose the right to their final dues just because they resigned in the middle of a disciplinary process. And yes, they must also be issued with a Certificate of Service!