The employment relationship can be terminated through various means, and these range from dismissal, death, retirement and resignation. The main focus of this article is on resignation without notice and the remedy that accrues to the employer.

Resignation relates to the unilateral decision made by the employee to terminate the contract of employment. Whilst the issue of resignation brings about a lot of questions which range from what constitutes a resignation? How should it be communicated? Can the employer refuse to acknowledge resignation by the employer? The current employer’s dilemma is on employees that resign without serving notice and what would be the remedy for the employer.

It has been common practice that where an employee resigns and does not serve notice employers have had the tendency to deduct amounts from the employee’s benefits that are equivalent to the notice that was supposed to be served. But is this lawful? Let’s see what the Labour Act says on allowable deductions on remuneration; Section 12 A subsection 6 of the Act states that;

No deduction or set-off of any description shall be made from any remuneration except —

(a) where an employee is absent from work on days other than industrial holidays or days of leave to which he is entitled, the proportionate amount of his remuneration only for the period of such absence;

(b) amounts which an employer is compelled by law or legal process to pay on behalf of an employee;

© where an employee has received an advance of remuneration due, the amount of such advance, up to an amount not exceeding twenty-five per centum of the gross remuneration owed;

(d) by written stop-order for contributions to insurance policies, pension funds, medical aid societies, building societies, burial societies and registered trade unions;

(e) by written consent of an employee, for repayment of money lent by the employer on terms that have been mutually agreed to between the parties concerned;

(f) an amount recovered for payments made in error.

The above extract from the Labour exact does not give employer the right to deduct any amount

from an employee for failure to serve notice. If so what is the remedy then, if any? Some labour professionals have weighed in more on the principle of ubi jus ibi remedium which states that where one’s right is invaded or destroyed, the law gives a remedy to protect it or damages for its loss. This right to a remedy therefore includes a right of action. The general view as prescribed by law is that, wherever a right exists there is also a remedy.

Unfair resignation or resignation without notice is not illegal nor is it classified under unfair labor practices in the Labour Act. However, where it happens they are two remedies that accrue to the employer, and these does not include unlawful deduction of benefits equivalent to notice not served. The remedies for the employer are specific performance and damages.

Suing for specific performance encompasses entitling the employer to hold the employee to the contract demanding that he or she gives proper notice and render services for the notice period. Specific performance is an equitable and discretionary remedy issued by the court which compels a contracting party to do that which he has promised to do. In general, the injured party has the right to claim specific performance if he is ready to carry out his own obligation under it, but the court has a discretion to order it or not.

This should not be mistaken for refusal to accept a letter of resignation however the breach relates only to failure to give notice and the employee will be ordered to serve notice as per the terms of contract. Whilst this is not provided for in the Labour Act the remedy was granted in the following South African cases Nationwide Airlines (Pty) Ltd v Roediger and Another (2006) 27 ILJ 1469 (H) where the employees were tied to fulfil the conditions of their contracts of employment. This was also further explained in the Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 © where the latter was tied to fulfill the conditions of his contract of employment without summarily serving notice and deciding to leave for greener pastures.

The second and last remedy for the employer is claiming damages arising from breach of contract as a result of the failure by the employee to serve notice. The proper course of action is for the employer to institute a claim for damages and provide compelling proof of damages with an easily identifiable quantum. There is no logic in assuming that these damages equate to the remuneration the employee would have earned had he or she served the notice period. As such it becomes the duty of the employer to justify any money that would be quantified as damages.

The principles applicable in claiming these damages were set out in the following South African cases, South African Music Rights Organisation v Mphatsoe [2009] JOL 23 476 (LC), National Entitled Workers Union v CCMA (2007) ILJ 1223 (LAC) and Labournet Payment Solutions (Pty) Ltd v Vasloo (2009) ILJ 2437 (LC).

So is forfeiting an employee’s benefits because they did not serve notice as per their contract lawful? Food for thought.

Ref: Tapiwa G. Kasuso — Resignation implications under Zimbabwe Labour Law- February 2017