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Often, after conducting an investigation, an employer will issue their employee with a notification to attend a disciplinary hearing and in response the employee will resign!

By doing so the employee hopes to avoid the disciplinary hearing and possible dismissal and rather go back into the job seeking market with a clean record.

If the employee resigns and serves their contractual notice period then the employer can proceed with the disciplinary hearing. During the notice period the employment relationship continues and thus the employer can still pursue disciplinary action. Should the hearing proceed and the employee does not show then the hearing may proceed in the employees absence.

But what an employer do when the employee resigns with immediate effect before disciplinary action commences?

In Mthimkhulu v Standard Bank of South Africa delivered on 18 September 2020 (“Mthimkhulu”) the Labour Court held that where an employee resigns in breach of his or her employment contract, the employer need not approach a court for an order of specific performance to keep the employment contract alive. It is the election by an employer to reject the repudiation of the employment contract that keeps it alive, not an order of specific performance.

The Labour Court has placed emphasis on the election which employers may make where an employee resigns with immediate effect in breach of his or her notice period. In response to the breach of contract by the employee, an employer may either accept the repudiation or it may reject it and hold the employee to his or her notice period, thus precluding the employee from avoiding a sanction being imposed upon him or her. Importantly, the employer need not rush off to court for an order of specific performance.