The courts, CCMA and Bargaining Councils are, on occasion, faced with cases which deal with the question of whether, or not, an employee has resigned, and if so, whether the employee was entitled to withdraw his or her resignation.
It can occur that an employee resigns, and thereafter attempts to withdraw the resignation, on grounds that they resigned unthinkingly, or that they have changed their mind, and no longer wish to do so.
This begs the question, may an employee change his or her mind, and if so, is the employer obligated to accept the employee’s change of heart?
To begin with, one must establish whether an employer is required to accept, or reject a resignation, or whether an employer has no obligation to do so? Put differently, does a resignation become effective without acceptance by the employer, or is employer acceptance necessary to confirm the resignation?
In CEPPWAWU v Glass & Aluminium (2002) 23 ILJ 895 (LAC) and NUMSA obo Williams v Southern Shipyard (2003) 12 MENT 1774, the principle that resignation was an offer that gives an employer an election to accept the employee’s resignation, was accepted. However, the most commonly held stance on this issue was upheld in the Labour Court judgment in Uthingo Management (Pty) Ltd v Shear NO & others (2009) JR2007, which held that it is not in fact necessary for an employer to formally accept an employee’s resignation.
The recent CCMA arbitration award in Dr. Lucky Ehimatie Asuelime v University of Zululand (Case number KNRB598-17) reiterated the principle that “resignation is a unilateral decision of the employee which does not require any formal acceptance from the employer”, continuing that “ … if our courts hold a view that the employer must accept and approve the resignation and keep the employee against his will for an indefinite period for whatever reason, that is a bad decision at law and it must be rejected”. This sentiment has been paraphrased on occasion to mean that it would amount to a form of indentured labour if resignations were only ratified by the acceptance of the employer on every occasion.
Another take on this issue is whether an employer can be said to have dismissed an employee, after the employer refuses to accept the retraction of an employee’s resignation? This question was addressed in the arbitration hearing at the Metal and Engineering Industries Bargaining Council of NUMSA obo Kau, Phillip v Scaw Metals (Case number MEGA45988).
In this case, the employee handed his written resignation to the employer; two days prior to submitting his resignation in writing, the employee had sent the employer an SMS stating “I have just tendered my resignation. I hope you receive it as I am experiencing problems with my PC”. Two days after having submitted the employer his written resignation, the employee informed the employer that he was ‘remorseful’ and had decided to retract his resignation.
His retraction was not accepted by the employer. In essence, the employee was arguing that he had resigned “on the spur of a heated moment, and that the employer’s refusal to accept the retraction of his resignation, amounted to an unfair dismissal.
In this case, the Commissioner held that the employer was under no obligation to accept the employee’s retraction of his resignation, and that the refusal to do so did not result in the dismissal of the employee; on the contrary, the employee had simply resigned. The Commissioner emphasised that case law supports the contention that, the test for resignation is that “an employee has to either by words or conduct, evidence a clear and unambiguous intention not to go on with his contract of employment” and that “to resign he has to act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfil his part of the contract”.
A further consideration is whether, or not, resignation per, for example an SMS, qualifies as a valid mode of communicating a resignation? This was dealt with in the Labour Court matter of Mafika v SABC Ltd (2010), wherein the employee submitted his resignation per SMS, after which he sought to retract this resignation some weeks later, on grounds including the fact that his SMS did not constitute a valid resignation at it was not in writing.
The court disagreed, citing that a communication by SMS is a communication in writing in terms of section 12 of the Electronic Communications and Transactions Act 25 of 2002.
Our law has evolved to hold that resignation is a unilateral act, which does not require acceptance by the employer, and that once resignation has been communicated by the employee, it cannot be withdrawn without the consent of the employer.
So, what does this mean for employees? Well, it’s quite simple. Employee decisions to resign must be carefully thought through, in the knowledge that a change of mind will, in all likelihood, only be possible with the employer’s agreement.