By Gillian Barnes
Resignation brings the contract of employment to an end from the moment it is accepted by the employer. The question then arises: What if acceptance is not granted, is the resignation valid or not and can the employer refuse to accept a resignation?
A resignation is most definitely a unilateral act that does not require the employer’s permission. However, certain circumstances bring about many questions surrounding the acceptance of a resignation.
Once the employer has accepted an employee's resignation, the acceptance cannot be unilaterally withdrawn. This principle is illustrated by University of North v Franks & others. In that case, the respondent employees accepted the university's offer of early voluntary retirement and severance benefits. The university then withdrew the offer. The court held that the employees were entitled to accept the offer. Once accepted, the offer was binding on the university because an offer cannot be revoked when it is expressly or tacitly stated to be irrevocable upon receipt unless the offeree rejects the offer. The offer therefore remained binding until the arrival of the specified date, and the university was obliged to release the employees and pay them the benefits to which it had agreed.
This case law illustrates the reversal scenario, whereby the employer offered early retirement and the employee accepted the offer. This scenario illustrates the same principle that acceptance renders the decision to terminate the employment relationship an agreement that cannot be revoked.
A scenario that often arises is when an employee resigns facing a disciplinary hearing. Is the employer obliged to accept the resignation or to continue with the disciplinary action?
Meyer v Provincial Department of Health & Welfare & others yielded the same result, but from the opposite perspective. In that case, the employee had resigned while facing disciplinary charges. The employer accepted the resignation on a 'without prejudice' basis, but later changed its mind, contending that he should attend a disciplinary inquiry. The court held that the term 'without prejudice' did not alter the legal effect of the otherwise unambiguous acceptance of the employee's resignation, by which it was bound. However, refusal by the employer to accept the employee’s resignation facing disciplinary action is futile due to the fact that the employee will not attend the hearing and will claim that the resignation terminated the employment relationship and not dismissal.
More importantly, it is beneficial for the employer to accept the resignation for the purposes of unfair dismissal claims at external dispute resolution forums. Should the employee claim that he/she was unfairly dismissed, the onus is on the employee to first prove dismissal and then for the employer to prove that the dismissal was substantively and procedurally fair. If the employer produces the resignation, the employee will not be able to prove dismissal and thus the fairness of the dismissal will not be explored.
The most common situation experienced by most employers is when an employee fails to give the required notice period as per his/her contract of employment.
Whether an employer is obliged to accept a resignation if the employee fails to give the required notice in the letter of resignation is uncertain. However, acceptance of a resignation tendered without the required notice binds the employer, provided that the acceptance is unconditional and unqualified. Thus it is of utmost importance that the acceptance of a resignation without the required notice period make mention of breach of contract.
Another interesting scenario employers may question is whether there is an obligation from the employer to accept the withdrawal of a resignation once accepted.
759 (LC) .
Once the employer has accepted an employee's resignation, the employee may not revoke it. Rustenburg Town Council v Minister of Labour & Others.
However, where the resignation occurred 'in the heat of the moment', the Labour Appeal Court had held that it may be withdrawn, and that the employer's refusal to allow the employee to do so may constitute a dismissal. Du Toit v Sasko (Pty) Ltd.
This decision seems to be based on the idea that such resignations are not fully informed. Chemical Energy Pepar Printing Wood & Allied Workers Union & another v Glass & Aluminium 2000 CC National Union of Metalworkers of SA on behalf of Williams and Souther Wind Shipyard ILJ NUMSA obo Williams/ Southern Wind Shipyards.
As with notice of dismissal, a resignation notice must be clear and unconditional. In Fijen v Council for Scientific & Industrial Research the court held the test for a valid resignation is whether the employee has 'either by words or conduct, clearly and unambiguously shown his/her intention not to go on with his/her contract of employment'; the act must be such as to “lead a reasonable person” to the conclusion that he did not intend to fulfill his part of the contract'.
Thus in summary a resignation does not necessitate mutual agreement but the circumstances discussed above stress the importance of ensuring that acceptance is clearly and unambiguously communicated. Therefore it is strongly advised that acceptance is confirmed in writing.
Please contact the Labournet Helpdesk on 0861 522638 should you require any assistance or have any questions.
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