RESIGNATION INSTEAD OF DISMISSAL?

There are times, in every business, when an employee does something seriously wrong and you have to take disciplinary action against the person. In some of these cases you may want to consider offering the employee a resignation, instead of having to go through a disciplinary hearing and then a dismissal.

This is usually the case when the employee’s conduct has been so bad for the business and such serious harm has been done in some way or another, that he/she is more than likely facing a dismissal. Especially when the trust relationship has broken down as well.

Examples of this are when an employee repeatedly fails to perform to the required standards. And after being given a fair chance to improve, still can’t do it. Or when a supervisor or manager just cannot do the job – the proverbial ‘misfit’. Now the employee faces being dismissed.

RESIGNATION OR DISCIPLINARY ACTION AND DISMISSAL

But can you ask the employee to resign and not face disciplinary action? And if so, is there a danger in doing this without falling foul of the law?

The answer is yes. But, you should do this only under certain circumstances eg as per the examples above. NOT when serious misconduct has occurred such as: theft or fraud, unauthorised possession of company property, prolonged absence without leave (perhaps not for the first time), extreme insubordination or something of a serious nature.

The employee of course, may want to refer this to the CCMA claiming a constructive dismissal. Saying that you forced him/her to resign.

However, if you follow these guidelines, you’ll have more than a strong chance of a decision going your way. That’s if the employee refers this to the CCMA.

GUIDELINES

1. Have proper evidence that the employee’s behaviour / misconduct or poor performance was SERIOUS enough to warrant a dismissal.
2. Prepare the Notice to Attend a Disciplinary Hearing before you meet with the employee and suggest the option to resign.
3. Then give the employee the choice by ASKING if he/she would like to resign, OR else face disciplinary charges as shown on the Notice. It must be truly voluntary…the employee must not be TOLD to resign.
4. Take the following into consideration before you consider offering the employee a chance to resign:
   1. the seniority of the employee (the more senior the better),
   2. the employee’s length of service,
   3. the employee’s overall performance and general conduct at work.
5. If the employee chooses to resign, he/she must put the resignation down in writing. In the letter the employee must state that the resignation was voluntary and that it was his/her decision to resign. The employee must sign the letter.

PRECEDENT

Finally, always be aware of the future impact that this will have on the business. Remember, a precedent will be set for similar cases in future.

For more details on this subject you can read this interesting article: Resign or face a disciplinary hearing!

Let me know if you need help with any employee issues, especially when it comes to dealing with employee misconduct. A bit of guidance from an expert can certainly make the process less painful in the long run. Click HERE to find out more about how it works.

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