Employees cannot withdraw a resignation at will

Employees cannot withdraw a resignation at will

On occasion, employees seek to withdraw their resignation.

The facts of the case were, in the main, common cause.

The employee had an altercation with her manager in a store, after which she submitted a letter of resignation giving her employer 24 hours notice that “I will be resigning”.  The employee was required to give two weeks notice, but had in fact only given the employer twenty four hours notice in her letter of resignation.

However, the employee then reconsidered her position and withdrew her resignation stating that her letter of resignation had not been officially accepted by the employer, and that it had never been her intention to resign.

The employer did not accept the employee’s retraction of her resignation, after which the employee referred a claim of unfair dismissal to the CCMA by virtue of the fact that the employer would not permit her to resume her duties after withdrawing her resignation.

The employer referred the matter to the CCMA on two grounds (1) she had withdrawn her resignation within her notice period when she was still an employee and (2) that the employer was obliged to formally accept or reject her resignation, and because the employer had not done so, she was entitled to withdraw such notice.

The Commissioner held that the employee was not unfairly dismissed and that the employer was indeed entitled to accept or decline the employee’s withdrawal of her resignation.

With specific reference to an employment contract, it was held that “either party to a contract may resile from the contract” and that “withdrawal from a contract by one party is a unilateral action which does not require the consent of the other party”.  As such, the employer was not required to accept the employee’s resignation in order for the resignation to be or remain valid.

Or as the Commissioner noted further “The employer is not required to confirm whether in fact it accepts the employee’s notice of termination.  The notice itself is a fait accompli.  It does not, in my view, require acceptance”.

The employee’s revocation of her written resignation was held therefore not to have been binding on the employer.  It follows that the employer’s refusal to permit the employee to resume her duties after withdrawing her resignation, did not constitute a dismissal, let alone an unfair dismissal.


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