Resignation?

• A voluntary, deliberate and unilateral act by the employee at which he or she brings the contract of employment to an end, with or without notice.
• It requires no acceptance or accord by the employer.
• The right of an employee to terminate a contract of employment on notice is recognized in common law.  More so, statutorily, section 12(4) of the Labour Act (Chapter 28:01) provides for the applicable periods whenever a contract of employment is to be terminated on notice.

Resignation without serving the notice period.

When an employee resigns from work and does not serve notice, many employers tend to automatically deduct the amount equivalent to the period of the unserved notice from the employee’s benefits. However, in terms of the provisions of the Labour Act, such a quick help practice by the employer is unlawful.

Resignation without notice is not illegal and it is also not classified as an unfair labour practice in the Labour Act. However, whenever it occurs, two remedies are available for the employer, and these do not include an automatic deduction of benefits equivalent to notice not served by the employer.

Allowable deductions from an employee’s remuneration

Allowable deductions that an employer can make against an employee’s remuneration are provided for under Section 12 A (6) of the Act and these are: –

(a) Where an employee is absent from work on days other than industrial holidays or days of leave to which he is entitled, the proportionate amount of his remuneration only for the period of such absence;

(b) Amounts which an employer is compelled by law or legal process to pay on behalf of an employee;

(c) Where an employee has received an advance of remuneration due, the amount of such advance, up to an amount not exceeding twenty-five percent of the gross remuneration owed;

(d) By written stop-order for contributions to insurance policies, pension funds, medical aid societies, building societies, burial societies and registered trade unions;

(e) By written consent of an employee, for repayment of money lent by the employer on terms that have been mutually agreed to between the parties concerned;

(f) An amount recovered for payments made in error.

The above-stated circumstances under which an employer can be allowed to make deductions against an employee’s remuneration do not include the right to deduct any amount from an employee for failure to serve notice.

Employer’s remedy when Employee resigns without notice

It is common cause that whenever someone’s right is contravened, the law gives a remedy to protect it or damages to be payable for its loss. Wherever a right exists, there is also a remedy.

The available remedies for the employer include the claim for specific performance or damages.

1. Specific Performance

• Suing for specific performance encompasses entitling the employer to hold the employee to the contract demanding that he or she gives proper notice and render services for the notice period.
• Specific performance is an equitable and discretionary remedy issued by the court, which compels a contracting party to do that which he has promised to do. The injured party has the right to claim specific performance if he is ready to carry out his own obligation under it, but the court has the discretion to order it or not.
• This remedy was granted in the following South African cases: – Nationwide Airlines (Pty) Ltd v Roediger and Another (2006) 27 ILJ 1469 (H), and Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73.

Depending on the nature of employment, the context and content thereof, it is usually quite a difficult situation for the employer to keep holding onto the disgruntled employee and make him to serve the notice period. Trust is greatly lost by the employer.

1. Claim for Damages

• The employer may claim for damages arising from breach of contract as a result of the failure by the employee to serve notice.
• The employer will need to institute a claim for damages before the a court of competent jurisdiction and provide the substantive proof of damages with an easily identifiable quantum.
• There is no basis to assume that the quantum of damages will equate to the remuneration the employee would have earned had he or she served the notice period. It is incumbent upon the employer’s to justify any money that would be quantified as damages.
• There may be additional pecuniary loss which the employer could have suffered as a result of the employee failing to give and serve the requisite notice
• The principles applicable in claiming these damages were set out in the following South African cases, South African Music Rights Organisation v Mphatsoe [2009] JOL 23 476 (LC), National Entitled Workers Union v CCMA (2007) ILJ 1223 (LAC) and Labournet Payment Solutions (Pty) Ltd v Vasloo (2009) ILJ 2437 (LC). Also, the case of  A. C Controls (Pvt) Ltd vs. Midzi and Another HH 75/10 is instructive on the issue of damages claim by an employer.

Professional employees are usually governed by the respective codes of ethics that compel them to serve their notice period whenever they do resign from employment as failure to do so will attract specific penalties that can include deregistration from the list of registered members of the professional board who can be eligible to practice among others punitive measures.  

Prepared by

Faith Mupangani

Disclaimer: Faith Mupangani is a Designated Agent for the National Employment Council for the Cotton Industry and he writes in that capacity. He can be contacted on 0773150598, or email fmupangani@neccotton.co.zw