The over-hasty resignation

Seen generally, an employee’s resignation is the flip-side of a dismissal: whereas a dismissal constitutes a termination of employment by the employer, a resignation is the termination of employment by the employee. But while termination of employment by the employer is to a large extent regulated by statute and employees are protected against unfair dismissal, there are considerably fewer rules relating to an employee’s resigning.

The essence of a resignation is that the employee gives the employer notice of termination of employment. An employee may inform the employer that he or she is giving one month’s notice of termination — the period of notice will be determined by the contract of employment or the Basic Conditions of Employment Act of 1997. In some cases, of course, an employee may terminate the contract of employment without notice, but this will be a lawful step only in the context of a serious breach of contract by the employer. An employer may also have a specific resignation policy that governs the procedures to be followed in the context of a resignation by an employee.

From a contractual perspective, the resignation is a unilateral act by the employee: it is up to the employee to decide whether (and when) to resign — unless, of course, we’re dealing with a constructive dismissal where the employee resigns because the employer has made continued employment impossible. The rules of offer and acceptance do not apply in this context: it is not that the employee is offering to resign and that this offer must be accepted by the employer within a reasonable period of time before the resignation becomes valid. A resignation is not an offer to form a contract; it is the giving of notice to terminate a contract.

But in practice, things may become more complicated: the employer and the employee can, for instance, enter into a termination agreement in respect of the employment relationship. This will be an agreement to terminate another agreement (the employment contract). And, when it comes to the termination agreement, the ordinary contractual rules do apply. As a rule, though, these termination agreements only come about in the context of termination of services by a senior manager.

With some regularity, employees resign in the heat of the moment and then try to withdraw the resignation. This is where things become interesting: can an employee withdraw a notice of termination of employment before that notice has been “accepted” by the employer? One situation that could arise is that the employer approaches the employee and requests the employee to withdraw the resignation and to remain with the employer. If the employee agrees to do this, it would have the effect of “cancelling out” the notice of termination. But normally, the resignation is a unilateral or one-sided act by the employee (for which the employee need not, in principle, even give reasons) and an employee may regret having resigned shortly after having done so.

Would it constitute an unfair dismissal if the employer then refuses to accept the withdrawal of the resignation? This was the essence of the employee’s argument in SACWU obo Sithole / Afrox Gas Equipment Factory (Pty) Ltd (2006) 16 MEIBC 7.1.4. The employee sent an e-mail to his line manager on 11 March, stating that he was resigning (he was intent on taking up a new job). On 30 March, the employee, also by e-mail, sought to withdraw the resignation. He argued that because the employer had not formally accepted the resignation in writing, he understood that the resignation had been rejected. But in fact the employer was processing the employee’s resignation in terms of its resignation policy and informed the employee that his last day of service would be 29 April.

The bargaining council arbitrator, correctly, confirmed that an employee who voluntarily resigns (and is not alleging a constructive dismissal) has made a conscious decision to terminate his or her service. There is no guarantee that an employer will, in such a case, accept the withdrawal of the resignation and thereby reverse the termination process — nor is there any obligation on the employer to do so. From a legal perspective, the employer has no option to either accept or reject the resignation: it could try to change the employee’s mind, but the employer cannot reject a resignation. The resignation in this case was over-hasty: the employee resigned without considering the full financial implications of that act (he had participated in a bursary scheme) and it was only when he looked at the termination documents prepared by the employer that he realised that he still had some financial obligations to his employer. Having found that it was now too late to withdraw the resignation, the employee then tried to argue that the employer had in fact dismissed him. The arbitrator rejected this argument, coming to the conclusion that the employee had not proven that he was dismissed and that the bargaining council therefore did not have jurisdiction.

An interesting case, again serving as a warning to employees: resignation is not a step that should be taken lightly — once an employee has resigned, the employment contract is being terminated, and it is not the case that the employer must accept the resignation in order for it to become effective. What is done, in this case, is done; it is a significant step to take, and employees should not resign without carefully considering the implications and the financial consequences of this step.