Sometimes, at a disciplinary hearing, the chairperson may offer the employee the option to resign instead of undergoing the hearing. The Bargaining Council case below discusses whether or not this is allowed.
In Tichawona / Hestony Transport – (2018) 27 NBCRFLI 7.1.15 also reported at [2018] 8 BALR 839 (NBCRFLI):
An employee was summoned to an incapacity inquiry. The chairperson of the hearing suggested that the employee could resign if he wished.
The employee signed a settlement agreement but later claimed that he had not realised his employment would terminate. As such, he contended that he had been unfairly dismissed.
The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) noted that in terms of the Labour Relations Act (LRA) disputes relating to settlement agreements may be arbitrated. An agreement in full and final settlement usually means that the CCMA lacks jurisdiction to determine a dismissal dispute.
It was found that when determining the validity of a settlement agreement, it must be noted that the employee is often in a weak bargaining position. This means that he or she should not be lightly assumed to have waived their constitutional rights.
The employee was a literate person with a good understanding of English and had been given an entire day to consider the proposed agreement. There was no evidence that the employee had been pressured to sign the settlement agreement. The employee had, accordingly, failed to prove that he had been unfairly dismissed.
The case supports the practice of offering an employee the opportunity to resign instead of facing the charges as long as the employee understands what they are doing.
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Cases, such as the one discussed above, are plentiful. If you have such a case at your company make sure that it’s handled correctly. Contact Jonathan Goldberg and the legal team to help you navigate this effectively. Follow this link to contact them.