An employee who resigns in the face of a disciplinary enquiry usually has poor prospects of succeeding with an ensuing constructive dismissal claim. However, this is not necessarily a given as was held in the recent decision of Majatladi v Metropolitan Health Risk Management & Others (2013) 34 ILJ 3282 (LC).

Majatladi agreed to act as head of department (HOD) for a specified period. During the acting period Majatladi informed the employer that she would not continue to act after expiry of the period, at which point she returned to her own business unit. When she declined management’s request to continue in the acting position, Majatladi was suspended and called to a disciplinary enquiry to face a charge of refusing to obey a reasonable instruction.

Majatladi lodged a grievance, but was found not guilty of the main charge of gross insubordination and guilty of the lesser charge of unbecoming conduct. The chairman recommended a sanction of a final written warning.

A short while later, Majatladi was again instructed to report of duty as acting HOD. When she refused, she was suspended again and told to attend another disciplinary hearing. This time, Majatladi resigned before the hearing.

She claimed before the CCMA that she had been constructively dismissed. The arbitrator disagreed. On review, the Court accepted that the fact that an employee who resigns in the face of a disciplinary hearing ordinarily makes it very difficult to prove a constructive dismissal. But this case was different. Majatladi had been charged with the very misconduct of which she had been found not guilty at the first disciplinary hearing. This indicated that she was being harassed. The instruction that Majatladi should continue to act after the expiry of the agreed period also constituted a unilateral variation of her contract of employment, and constituted a breach of contract.

The Labour Court held that to submit Majatladi to the same process, arising from the same alleged misconduct, was manifestly unfair and her resignation accordingly amounted to a constructive dismissal. Majatladi was awarded compensation equal to six months’ salary.

Employers should ensure that any disciplinary action to be instituted against their employees is for a fair reason which will withstand scrutiny. Had this been the case in Majatladi's matter, her constructive dismissal claim may well have been dismissed.