Resignation and Section 186(1)(e) of the Labour Relations Act 66 of 1995: are employees bound to notice periods?

Abstract

This thesis explores the intricacies of constructive dismissal in South African labour law and specific emphasis is placed on the position of the employee. Whilst exploring constructive dismissal generally, further emphasis is placed on the issue of whether employees are bound to notice periods when they resign without notice due to intolerable conduct of an employer. The significance of this study cannot be understated – the wording of section 186(1)(e) of the LRA provides that a dismissal occurs when an employee terminates the employment contract “with or without notice”, however, an agreed or ex lege notice period may be applicable which binds the employee to serving a notice period before the employment contract can be terminated by resignation. The wording of section 186(1)(e) of the LRA envisages an instance in which an employee terminates a contract of employment with or without notice (which is done by resignation on notice often in terms stipulated by a contract of employment or in terms of the BCEA). This results in a potential incongruity between the relevant provisions of the LRA and the contact of employment and/or the BCEA in that employees are almost certainly bound by a notice period. Does the wording of section 186(1)(e) of the LRA mean that employees are bound to notice periods and thus prevented from resigning “without notice” in terms of section 186(1)(e) of the LRA? The research contained in this thesis will show that employees must adhere to applicable notice periods as courts have not pronounced specifically on the issue of whether a contract of employment may be terminated without notice when an employee faces intolerability in the workplace. This study further considers the equivalent legal position of employees in Kenya and ultimately calls for legal development/reform which would afford employees proper protection when resigning in the face of intolerable conduct from an employer in South Africa.