We often get questions from employers hinging around employee resignations, such as “must it be in writing” or “can I accept it verbally?” “The employee resigned but now wants to withdraw his resignation – must I allow this?” And so on. In Quinn / Singlehurst Hydraulics (SA) Ltd [2005] 6 BALR 673 (CCMA), the applicant referred a dispute of unfair dismissal to the CCMA, alleging that he was unfairly dismissed, but the respondent employer alleged that the applicant had in fact resigned.
In his arbitration award, Commissioner P Shangase stated that “The test for determining whether an employee resigned or not is that an employee has to, either by word or conduct, show a clear and unambiguous intention not to go on with his contract of employment in that he has to act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfill his part of the contract.”
The Commissioner then dealt with the main issue – i.e., whether or not the applicant had been dismissed or whether he resigned. The applicant’s version was that, on a certain evening, another employee of the respondent came to the applicant’s sister’s house. This employee told the applicant that he had been instructed by the MD of the employer to take the applicant’s office keys from him, and to warn him that he was not to put foot on the respondent’s premises again, and if he did he would be arrested. The applicant then said to this employee ” I would resign.”
The applicant then stated that the following day he was admitted to hospital, and he never tendered his resignation. The respondent’s version was that on that evening, the applicant told the other employee that he would tell the respondent to stick his job, and that he was resigning. The employee to whom the applicant had said this, conveyed this to the MD of the respondent, who replied that he accepted the resignation of the applicant, and that the applicant was not required to work out his notice period.
For various reasons, the main reason being the fact that the applicant in this matter only indicated an intention to resign, but did not actually submit a resignation – either verbal or written. The commissioner found that the applicant had in fact been unfairly dismissed. Employers therefore, should be careful about too hastily “accepting a resignation”, when in fact a resignation has not formally been given – either verbally, or in writing, or perhaps by the employee abandoning the employment.
In other words, an indication of the intent to resign does not necessarily constitute a resignation. In Bosch / Brik Centre t/a Brick Marketing [2000] 1 BALR 1 (CCMA), an employee with 9 years service with the employer, informed the employer that she intended to leave the following month to go into business with her brother.
Two weeks later, she told the employer that she would not be leaving, because she had been unable to raise the finances necessary for the intended to business venture. The employer informed her that he had accepted her resignation 2 weeks previously, and had already appointed another person to her position.
The applicant maintained that she had not resigned, but had merely informed her manager of the possibility of her departure. The employer contended that she had submitted a verbal resignation, which could not be revoked. Evidence was led by the respondent, to show that the applicant and stated to her manager that if certain uncertainties were resolved, she would tender resignation on the 1st of the following month. She had also asked the applicant if she could be released from her duties by the middle of the following month, and this arrangement had been agreed to buy the respondent employer.
In the arbitration award, Commissioner Dr JG Grogan stated:
” Employees are considered to have given notice of their intention to resign if they unambiguously inform their employers that they will terminate the contract on a certain date. Notice of intention to resign is a unilateral act which, once given, cannot be revoked without the consent of the other party”
” Although the Basic Conditions of Employment Act requires such notice to be in writing, it does not in my view follow that a verbal notice of intention to resign has lost its common-law significance. However, in order to be binding, the notice of intention to resign must be clear, unambiguous, and unconditional: (Transport & Allied Workers Union & others v Natal Co-operative)
For various reasons, (one being the effect of the applicant’s request to the employer that she be released from her duties in the middle of the following month, and the other being in that she accepted all monies due to her from the company, are consistent with her resignation) the Commissioner concluded that the applicant had in fact resigned. Again, in this matter, no formal written resignation was admitted.
In SACWU obo Sithole / Afrox Gas Equipment Factory (Pty) Ltd [2006] 6 BALR 592 (MEIBC) , the applicant sent an e-mail to his manager, with a copy to his manager superior, giving a resignation. Approximately two weeks after that, the applicant sent another e-mail to the same people, stating that he was withdrawing his resignation.
The respondent employer in formed the applicant that he could not withdraw his resignation because it had already been accepted, and arrangement had been made to employ a replacement. The applicant then maintained he had been unfairly dismissed, and referred a dispute to the bargaining council. The applicant contended that “He had believed that the company should have formally accepted his resignation in writing or his manager should have discussed the resignation with him within 3 working days of the resignation and that until the company did so, the resignation was not final”
There is no requirement anywhere in labour legislation for such a procedure. When an employee submits a written resignation and to his employer – and e-mail constitutes a written resignation – there is no requirement for the employer to acknowledge receipt of the resignation, or to communicate with the employee on the matter.
The submission of the resignation constitutes a clear intention on the part of the employee to terminate the employment relationship. The employee does not have a legal entitlement to withdraw a resignation, and contrary to popular belief, a so-called ” cooling off period” does not exist.