The Labour Court’s decision in Mahamo v Nedbank, later confirmed by the Court of Appeal, has fundamentally reshaped how resignation is treated in the context of pending disciplinary action. For many employers, the ruling has created what feels like a procedural trap: the inability to finalise internal disciplinary measures when an employee tenders their resignation prior to the conclusion of proceedings. While some may view this development as a necessary affirmation of the employee’s right to freedom from forced labour, others regard it as an erosion of the employer’s ability to enforce workplace discipline and uphold internal codes of conduct.
This article examines the Mahamo decision and explores the consequences it holds for workplace accountability, internal disciplinary processes, and the scope of employer remedies under Lesotho’s labour framework.
The Facts in Brief
The matter arose from a scenario that, while specific in detail, has become increasingly common in practice. An employee was suspected of theft, specifically, misappropriation of funds from her employer. Following an internal investigation, the employer initiated formal disciplinary proceedings in accordance with its disciplinary code. The employee was notified of the hearing, afforded time to prepare, and attended the hearing, at which she pleaded not guilty.
Midway through the hearing, and apparently in light of the strength of the evidence against her, the employee tendered her resignation with immediate effect. She did so without serving notice, arguably a strategic move, as the employer would still have had authority to proceed with the hearing during the notice period. The employer attempted to reject the resignation and insisted that the employee complete the disciplinary process before her resignation would be accepted. It further threatened to withhold terminal benefits pending the outcome of the hearing.
The employee approached the Labour Court, seeking an order compelling the employer to release her terminal benefits. The employer, for its part, argued that the resignation was not valid until accepted, and that the employee could not circumvent the disciplinary process by resigning under suspicion of serious misconduct.
The Legal Position: Resignation as a Unilateral Act
The Labour Court rejected the employer’s arguments and held that resignation, once tendered, is a unilateral act that does not require acceptance by the employer in order to be valid and effective. An employee cannot be compelled to continue in employment against their will, even where they face pending disciplinary charges. To do so would be tantamount to compelling someone to work, a clear violation of section 8 of the Constitution of Lesotho, which prohibits forced labour.
The Court further held that, in the absence of a completed disciplinary process and a finding of guilt, the employer could not rely on mere allegations of misconduct to justify the withholding of terminal benefits. The employer’s internal disciplinary process was effectively terminated upon the resignation, and any unresolved claims relating to the alleged theft would have to be pursued through ordinary civil or criminal proceedings.
Implications for Employers
The decision in Mahamo has significant implications for employer disciplinary frameworks in Lesotho:
- Internal Procedures Cannot Override Constitutional Rights
Even the most well-drafted disciplinary code cannot empower an employer to detain an employee within the employment relationship. Where an employee tenders their resignation whether strategically or not, that resignation takes immediate legal effect. - Disciplinary Proceedings Are Contingent on Employment
As disciplinary procedures are a function of the employer employee relationship, once the employment relationship ends, the jurisdiction to discipline the individual falls away. - No Presumption of Guilt Without Due Process
In the absence of a completed disciplinary process, an employer may not treat allegations of misconduct as established facts. Consequently, terminal benefits must be paid unless a contractual or statutory basis for withholding them exists. - Civil and Criminal Litigation as Alternative Remedies
Employers may still seek to recover losses through the courts by pursuing civil claims or laying criminal charges. However, these processes are often lengthier, more costly, and uncertain in outcome compared to internal proceedings.
A Difficult Pill for Employers
Understandably, employers have expressed frustration with this position. The perception is that employees may exploit resignation as a shield against accountability. Employers invest substantial time and resources in maintaining disciplinary procedures only to find them halted abruptly when an employee exits the employment relationship.
While this concern is valid, it must be balanced against fundamental constitutional protections and the right of individuals to leave employment voluntarily. The Courts have consistently upheld that disciplinary codes must operate within the bounds of the law, not above it.
Conclusion
The Mahamo judgment is a stark reminder that, in Lesotho, employment cannot be used as a lever for compelling participation in disciplinary processes. While this may create enforcement gaps in the context of workplace misconduct, the judiciary has made clear that the rule of law and constitutional rights must take precedence.
Employers are advised to:
- Act swiftly where misconduct is suspected;
- Ensure that employment contracts contain clauses addressing resignation during pending disciplinary action (even if limited in effect);
- Consider reporting serious allegations to the police to preserve criminal and civil remedies;
- Explore policies that provide for the forfeiture of discretionary benefits where resignation occurs in the face of pending proceedings, provided such provisions are legally sound.
Ultimately, the judgment reaffirms the principle that resignation is not a loophole, it is a legal right. The challenge for employers is to develop robust yet lawful strategies for mitigating risk when disciplinary processes are disrupted by sudden exits.