An employer may refuse to accept a resignation that is not compliant with notice requirements, but cannot refuse one that follows the contract or legal regulations.
Introduction
Courts have recognised that resignations are unilateral acts that take effect once communicated by the employee to an employer. They do not require any further action from the employer. This notion was reinforced by the Labour Court in the case of Mohlwaadibona V Dr Js Moroka Municipality .
Background
In this matter, the employer, which is a municipality, was placed under administration. Following this, due to ill health, the employee submitted his resignation on the 1st of April 2021. He addressed his resignation letter to the acting Municipal Manager at the time.
Fifteen days later, astonishingly, his health condition improved, and he wrote a letter to his employer seeking to withdraw his resignation. On the same day he received a letter from Mr Mhlanga, who informed him that the withdrawal of his resignation was not accepted and furthermore the letter instructed him not to report to work on the 19th of April 2021.
Claiming that he had not seen Mr Mhlanga’s response, the employee returned to work and received his April salary. He then turned to the acting municipal manager to affirm his continued employment, who accepted the withdrawal on the 10th of May 2021.
Later, another acting Municipal Manager was appointed and both parties agreed that the employee officially resigned on the 1st of April 2021. When the employee was informed that his withdrawal was not accepted, he sought urgent relief from the Labour Court (LC).
Labour Court
The LC determined that even if the employee had only become aware of the of the employer’s response on the 23rd of April, it was established that the Municipal Manager did not consent to the withdrawal. The employee argued that he had implied consent because there was no objection upon his return. The court however held that the fact that the Municipal Manager did not object did not indicate consent.
The LC stated that once resignation has taken legal effect, consent to withdraw implies re-employment. If both the employer and employee agree to continue the employment relationship, it would be based on a new offer and acceptance of employment. Re-employment or rehiring in the context of local government requires compliance with specific statutory requirements. On this reasoning, the employee’s argument that his employment relationship continued unaffected because he reported for duty and received a salary had to fail. The unilateral retraction could not hold.
In addressing Mr Mhlanga’s refusal and the acting municipal manger’s acceptance of the retracted resignation the LC stated that, if a mutually agreed retraction of resignation is considered re-employment, the representative acting on behalf of the employer must have the requisite authority to offer re-employment. In accordance with the Municipal Systems Act and Municipal Financial Management Act, the acting Municipal Manager did not have the unfettered authority to incur expenses associated with new hires on behalf of the municipality.
Therefore, the LC concluded that the relief sought by the employee to be reinstated could not be granted.
Conclusion
A resignation is a unilateral act with consequences. The employee’s notice period does not constitute a cooling-off period during which time an employee backtracks on the decision. While employees are obliged to serve their notice period, failure to do so does not negate the effect of a resignation. Failing to work the notice period stated in the contract can however result in a damages claim and/or disciplinary action. An employer may refuse to accept a resignation that is not compliant with notice requirements but cannot refuse one that follows the contract or legal regulations. If both parties agree to continue the employment relationship, it shall be based on a new offer and acceptance of employment.
by Ross Simon
© Maserumule Corporate Employment Law – October 2024