Is forced resignation an option for an employer?

Ndumiso Sibanda Labour Matters
MANY employers for various reasons will ask employees to resign or they face dismissal and possible criminal proceedings resulting at times in complex and expensive legal cases.

In terms of Zimbabwe Labour Legislation, the ways of leaving employment by an employee are prescribed and these include: resignation, retirement, death, dismissal and retrenchment. While most of these are straight forward, the issue of resignation remains problematic for many employers. Legally, resignation must be voluntary. There should be no traces of pressure from the employer whether verbally or in writing and the law also bars the employer from engaging in acts of constructive dismissal which are intended to force the employee to resign (Section 12B(3)(a) of the Labour Act).

The employer’s dilemma at times is that the affected employee would have served the organisation at a senior level knowing all the organisation’s skeletons which could be exposed to the detriment of the business if the employee is taken head on in a hearing so the employer elects to ask the employee to resign. At times it works and at times it back fires with the employee refusing to resign leaving the employer with no option but to take disciplinary action. When this happens, the employee will allege constructive dismissal and the case becomes problematic.

There are also cases where the employer has no solid case against an employee and he uses flimsy excuses and threats to persuade the employee to resign. If it fails the employer then resorts to acts of constructive dismissal and these usually come back to haunt the employer when courts order reinstatements on grounds of constructive dismissal.

Employers are better positioned to deal with employees through proper disciplinary processes and leave it to the employee to offer to voluntarily resign, that way the risk of having the employee allege constructive dismissal is avoided.

Where the employee offers to resign, the employer must ensure that all is in writing and witnessed by a witness of the employee’s choice and the voluntary nature of the resignation must be highlighted.

Employers need to recognise that an offer to resign and resignation are two different things. Where the employee resigns, it is the end of the story and where the employee offers to resign parties have to agree on terms of resignation and thereafter the employee resigns.

Resignation must not be confused with mutual separation as in most cases disputes related to forced resignation end up settled through mutual separation agreements.

In conclusion, forced resignation is a dangerous route that required careful calculation of risk and expert direction to avoid come backs.

  • Davies Ndumiso Sibanda can be contacted on: email: [email protected] or cell No: 0772 375 235

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