‘Employer has no right to reject resignation letter’

MASERU – NOBENDI Gugushe expected her resignation from the Ministry of Mining to be finalised. The next call from the ministry, she assumed, was for her to start processing her terminal benefits.

But instead, she found herself in a legal battle after the ministry rejected her resignation and insisted on laying disciplinary charges against her.

She filed an urgent application in the High Court to declare her resignation final and disciplinary charges that followed illegal.

Justice Tšeliso Monaphathi granted both pleas, ruling that an employer has no right to reject a worker’s resignation because that would be tantamount to forced labour. Justice Monaphathi also ruled that disciplinary proceedings after the rejection of her resignation were illegal.

He ruled that once an employee has resigned, their “employer neither has to accept it, nor refuse it”.

“The right to resign cannot be withdrawn without the employee’s consent,” Justice Monaphathi said.

“The refusal to accept a resignation could amount to a form of indentured labour. Section 9 of the Constitution of Lesotho expressly forbids forced labour,” he said.

The ministry, however, felt hard done by and appealed the ruling.

Its argument was based on the Public Service Regulations of 2008 which state that “where an officer who has been charged with breach of discipline resigns from the public service before the charge has been dealt with to finality in accordance with the . . . Disciplinary Code, the disciplinary proceedings on the charge of discipline shall continue against him or her notwithstanding the officer’s resignation”.

Last week the Court of Appeal however rejected the ministry’s appeal and agreed with Justice Monaphathi’s judgement. Gugushe was employed as a public officer in the ministry in 2009.

In May 2021 she was served with a “show cause letter” based on her alleged absenteeism from work since March of the same year.

She was given until May 14, 2021, to respond. On May 17, 2021, she requested “further particulars” to enable her to respond.

A day after responding, she received a letter informing her that her salary was being stopped with effect from June 24, 2021.

The salary was indeed stopped. Gugushe responded by submitting her resignation with immediate effect, on May 21, 2021.

In the resignation letter, she stated that she tendered her salary of one month, in lieu of the required one-month notice period.

In a letter of June 1, 2021, the Principal Secretary of the Ministry informed Gugushe that her resignation was not accepted because the resignation letter did not comply with the requirements for a valid resignation.

On June 25, 2021, Gugushe was served with a letter inviting her to a disciplinary hearing scheduled to take place on July 8, 2021.

Caswell Tlali