Resign before you are fired
7 months ago
It is quite common for an employee who is faced with investigations, interdiction or disciplinary proceedings to resign in order to avoid adverse action such as dismissal which could also result in loss of benefits and certainly to diminished employability.
In Kennedy Obala Oaga v Kenya Ports Authority, discussed below, the labour court confirmed that the Employment Act does not bar, or in any way limit an employee, from terminating their contract of employment before, during or after a disciplinary hearing.
The Claimant resigned after being heard by a Disciplinary Committee, but before the Disciplinary Committee gave its verdict. His resignation was with immediate effect. There was no notice period, the Claimant having opted to pay the Respondent 1-month salary in lieu of notice. The primary issue was whether Claimant’s resignation was valid, lawful and binding on the parties.
The court held that the employer ceased to have jurisdiction to discipline the Claimant the moment he tendered his resignation letter and therefore, the Respondent could not deliver a lawful verdict arising out of the disciplinary process after termination of employment.
The court was fortified in the finding by the decision of the Labour Court of South Africa in Mtati v. KPMG (Pty) Ltd (2017) BLL 315 (LC).
The Employee tendered 2 resignation letters; the first after the Employee found out the Employer was investigating her for misconduct. The first letter gave the Employer notice when termination would become effective.
The Employer constituted a Disciplinary Committee. The Employee was invited to attend the hearing. She issued a second letter of resignation with immediate effect. She challenged the authority of the Disciplinary Committee to continue with the process in light of her immediate resignation. The Disciplinary Committee Chairperson overruled the Employee’s objection, went on with the hearing, found the Employee guilty of misconduct, and recommended her dismissal. The Employee challenged the Disciplinary Committee’s decision at the Labour Court.
The Court held that where an Employee tenders a resignation with immediate effect, the Employer is immediately deprived of jurisdiction to continue with the disciplinary process. The authority to discipline an employee is based on the existence of a contract of employment. Without a contract, there is no authority.
The Difference between a resignation with immediate effect and a resignation on notice
If the Employee has given notice and is serving the notice period, the employer retains jurisdiction to discipline the employee up to the end of the notice period.
In Edwin Beiti Kipchumba v. National Bank of Kenya Limited  e-KLR, it was held that resignation by an employee from employment is a unilateral act. The Employment Act does not require the Employer to accept a notice of termination issued by the Employee, for that notice to take effect.
Therefore, if according to the resignation letter the notice is to take effect immediately, the employer has no choice but to stop any contemplated disciplinary proceedings.
Kenyan Union of Commercial, Food & Allied Workers Union v. B.S. Mohindra & Company (K) Limited  e-KLR,
Dominic Kiilu the 1st grievant was employed by the Respondent on 1st February 1994 as a General Worker at a salary of Kshs.1, 495.00 per month and was working in the Export Department. In 2012 Mr Kiilu was transferred to the Purchasing Department. He resigned from his position with effect from 20th July 2009 having served for 16 years. Mr Kiilu resigned without notice as provided under the CBA. Mr Kiilu’s claim was for terminal gratuity.
Mr Kiilu was awarded the gratuity, however, three months’ salary was deducted as he had failed to give three months’ notice of resignation.
An employer may opt to provide in very clear terms in the Human Resource Manual, that where an employee resigns during investigations or during disciplinary proceedings, they shall not be entitled to the benefits which would otherwise be payable on regular termination.
Written by: Daphne Njeri
Edited by: Anne A Babu
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