Discipline and Dismissal

It would seem that, if our e-mail facility on our website is anything to go by, breach of contract is on the increase – by both employer and employee parties to the contract. On the employee side, the most common and increasing breach is on the notice period. Most contracts stipulate at least the statutory notice periods, and others may have different requirements.

What ever the case, it is becoming very common for an employee to find other employment, wait for his salary to be paid at month end , and then  next day he/she sends an SMS or e-mail message to the employer, stating that "I have resigned and will not be coming back. Please pay my leave pay and pension benefits into my bank account."

This practice is not uncommon, and is on the increase. Thus, although the employment contract may stipulate a longer notice period, the employee has terminated the contract on 24 hours notice, thus placing himself in breach of contract. In addition, to give 24 hours notice is unlawful and in contravention of the Basic Conditions of Employment Act (section 37) which makes no provision for 24 hours notice.

Employees have learned that if they give 24 hours notice and walk out, the employer is not permitted to hold back any money in lieu of notice, and the employer is required to still pay the employee the salary up to the last day worked, plus any outstanding leave pay, pro-rata bonus (if applicable), and any accrued pension or provident fund benefits.

The employee who walks out on 24 hours notice may also be seen to have deserted – if the employee has notified the employer that he will not be resuming employment at a future date, then obviously that employee has no intention of returning to work.

It may be said then that the employee has deserted, thus repudiating the contract of employment by abandoning the employment.  The employer will then accept that repudiation, thus terminating the contract. The question is – what does the employer do about such a situation ? There are avenues open to the employer – but all will incur legal costs. And there is no guarantee that the Court will make an award as to costs in favour of the employer.

The employer can sue for specific performance. This means that the employer can sue the employee to perform the according to the terms stated and agreed to between the parties to the contract. It follows that this will mean that the Court compels the employee to return to work and work out the contractual notice period.

There are all sorts of pitfalls and conditions regarding a lawsuit for specific performance, and it is not recommended in the context under discussion. The employer has a further option, namely to sue for damages.  The employer (called the plaintiff in a civil action) must prove firstly that the breach of contract by the employee took place. He must establish that there was a breach.

He must then prove that he has suffered damages, and he must quantify those damages and prove that the damages suffered was as a direct result of the breach. The employer should also take reasonable steps to mitigate (lessen the adverse impact of ) the damages if possible.

For more information contact [email protected]

 

Subscribe to our free newsletter

* indicates required
 

By submitting your email address to us, you agree to receive our newsletters and course updates. For more information about how we protect your personal information, click here .

Accredited Training Provider

     

Upcoming Courses

 

Workplace Discipline and Dismissal

07 July 2022 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

14 July 2022 (08:30 - 16:00)

Interactive Online Course

21 July 2022 (08:30 - 16:00)

Emperors Palace Convention Centre

Basic Labour Relations

15 July 2022 (09:00 - 16:00)

Interactive Online Course

New Code of Good Practice: Harassment in the Workplace New Course

15 July 2022 (09:00 - 12:00)

Emperors Palace: Convention Centre

Chairing Disciplinary Hearings

21 & 22 July 2022 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management (Legal Liability) 

28 July 2022 (08:30 - 16:00)

Interactive Online Course

29 July 2022 (08:30 – 16:00)

Emperors Palace: Convention Centre 

Managing day-to-day challenges in the workplace

28 July 2022 (09:00 - 15:30)

Interactive Online Course

The Basic Conditions of Employment Act and Related Workplace Policies New Course

29 July 2022 (08:30 - 12:30)

Interactive Online Course 

 

August

New Code of Good Practice: Harassment in the Workplace New Course

04 August 2022 (09:00 - 12:00)

Interactive Online Course

Trade Unions in the Workplace

05 August 2022 (09:00 - 12:00)

Interactive Online Course

Managing day-to-day challenges in the workplace

12 August 2022 (09:00 - 15:30)

Cape Town: Protea Hotel Tyger Valley

The formulation of disciplinary charges Online Course

12 August 2022 (09:00 - 12:00)

Interactive Online Course

Chairing Disciplinary Hearings

18 & 19 August 2022 (09:00 - 16:00)

Emperors Palace: Convention Centre

Hazard Identification & Risk Assessment Course

18 August 2022 (08:30 - 16:00)

Interactive Online Course

Shop Steward Training

19 August 2022 (09:00 - 16:00)

Interactive Online Course 

How to win an unfair dismissal case at the CCMA / Bargaining Council

25 August 2022 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

25 August 2022 (09:00 - 13:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

26 August 2022 (08:30 - 16:00)

Interactive Online Course

 

September

Retrenchments Simplified

02 September 2022 (09:00 - 12:00)

Interactive Online Course

Introduction to Mediation New Course

08 September 2022 (09:00 - 16:00)

Interactive Online Course

Basic Labour Relations

09 September 2022 (09:00 - 16:00)

Cape Town: Protea Hotel Tyger Valley

Negotiation Skills New Course

22 September 2022 (08:30 - 16:00)

Interactive Online Course

 

Our Clients