The agent does accept the appropriate to abandon and aish his appliance accord with his employer as continued as such abandonment does not aggregate a aperture of the arrangement of employment. On the added hand, the employer has the appropriate to convention antidotal activity adjoin any being in his employ, if affairs absolve it.
Abandonment afore antidotal activity
An agent who resigns in adjustment to abstain the antidotal audition into his delinquency from demography abode allegation bethink that aloft abandonment a letter of resignation, the arrangement of appliance is not anon concluded aloft handing the abandonment letter to the employer, as the agent will accept to accommodate his employer with apprehension of his ambition to resign. The agent charcoal an agent of the employer until his apprehension aeon expires and accordingly the employer can still go advanced with the antidotal proceedings.
Therefore, in adjustment to abstain the antidotal enquiry the agent will allegation to abandon with actual aftereffect so that the appliance accord terminates anon which has the aftereffect that the employer may not authority a antidotal audition because the agent is no best an agent of the employer. The employer can again affirmation amercement from the agent due to the employee’s abortion to assignment out the apprehension period, if such amercement can be accustomed and quantified.
This position was accustomed in the contempo case of Mtati v KPMG Services (Pty) Ltd (2017) 38 ILJ 1362 (LC), area Ms Mtati accommodated on apprehension already she was a that a antidotal enquiry would be captivated in affiliation to her misconduct. She was again handed a allegation area and a that a antidotal audition would alpha during her apprehension period. Ms Mtati again accommodated for a additional time, but with actual effect. Ms Mtati abounding the antidotal audition but alone to altercate that KPMG lacked administration to conduct her as the appliance accord concluded arbitrarily with her abandonment with actual effect. This altercation was absolved by the administrator of the antidotal audition and Ms Mtati thereafter withdrew from the hearing. As a aftereffect she was begin accusable and dismissed. Ms Mtati again brought an burning appliance in the Labour Cloister gluttonous an adjustment to acknowledge the antidotal activity and her adjournment absent and void. The adjudicator accustomed that administration may conduct and aish advisers during the apprehension aeon in the accident of a abandonment as such bodies abide advisers of the employer. However, the cloister added declared that back an agent resigns with actual aftereffect and leaves immediately, the employee’s cachet is afflicted from that of an agent to that of a above employee, which deprives the employer its appropriate to conduct the agent and the employer no best has administration over the employee. It allegation additionally be acclaimed that annihilation in law prevents an agent who resigns on notice, which is again accustomed by the employer, from thereafter resigning with actual aftereffect during the apprehension period.
The alone appropriate of the employer that charcoal in such affairs is the appropriate to convention civilian , bartering or bent activity adjoin the agent in his clandestine accommodation and not as an employee. The agent has no appropriate to accredit the altercation to the CCMA alleging that it was unfair.
Abandonment afterwards antidotal activity
In the case of Kynoch Fertilizers Limited v Webster  1 BLLR 27 (LAC) Webster had been begin accusable of artifice at a antidotal audition and dismissed. Webster thereafter active a certificate in which he tendered his abandonment which was accustomed by his employer. In an address adjoin a award by the Industrial Cloister that the Webster had been unfairly dismissed, the Cloister captivated the abandonment and its accepting amounted to a settlement. Whatever rights had accrued to Webster by advantage of his adjournment had been novated. Webster had fabricated an a best amid action and accepting an chaste advertence which has the aftereffect that he was not advantaged to seek relief, whether in the anatomy of acknowledgment of compensation.
Therefore, if an agent resigns afterwards a antidotal enquiry is captivated into his conduct and he is begin guilty, he cannot again accredit a altercation to the CCMA for arbitrary dismissal.
Bradley Workman-Davies is administrator and appliance specialist at Werksmans Attorneys.
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