As an employer you might be faced with a situation where you discipline an employee and the next moment they serve you with a written or even verbal notice of their resignation. The next morning this employee returns to work saying that he withdraws his resignation and continues with his duties. Can you under these circumstances enforce the resignation?
To best understand and give guidance to the above, we will have to consider how the courts and CCMA have dealt with similar matters.
Special circumstances and cooling off
In the matter of Kwik-Fit (GB) Limited v Lineham, an employee resigned in the heat of the moment. When special circumstances exist, then an employer should investigate the matter and ascertain the employee’s true intention. ‘Special circumstances’ may include particular pressures on the employee or the employee’s personality. In this case, it was found that the employee had only resigned in the heat of the moment after considerable humiliation and provocation by his manager. If the resignation was indeed in the heat of the moment and the above-mentioned special circumstances exist, the employer should allow a cooling-off period to ascertain if any other matters arise to cast doubt on whether the employee really meant to resign. A reasonable cooling-off period is considered 48 hours. If the employer fails to allow a cooling-off period and immediately accepts the resignation, then a tribunal may conclude that the employee had not in fact resigned, but was dismissed by the employer.
In the matter of Quinn/Singlehurst Hydraulics (SA) Ltd (2005), 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, the Commissioner stated that “the test for determining whether an employee resigned or not is that an employee has to show, either by word or conduct, 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 fulfil his part of the contract”.
The employer’s duty
In considering the above case law it is clear that not only can an employee withdraw a resignation, but there is a further duty placed on the employer to ensure that the employee had a clear and unambiguous intention to end his contract of employment. In order to do this, the employer has to investigate the circumstances under which the resignation was given. The courts have therefore stated that a cooling-off period of 48 hours should be given to any employee to withdraw a resignation to ensure that an employee can reflect on his decision.
Should an employer not afford an employee a cooling-off period, and further not take proper consideration of the circumstances under which the employee took his decision, such an employer may be found to have dismissed the employee. This therefore creates a big problem for any employer as the employer might be faced not only with an award given against them, but might also face reinstatement of the employee.
What could be done to avoid this?
- 48 hour cooling-off period should not only be allowed to the employee, but it would further be advisable to inform the employee of this when the resignation is considered to be taken in the heat of the moment.
- Correspond in writing as to keep proper record of your communication with the employee should the matter proceed to the CCMA or Labour Court.
- Do not accept a verbal resignation. Rather inform the employee in writing that if he intends to resign, he has to provide you with a written resignation letter.
- Investigate the reason for resignation and inform the employee of other alternatives such as filing a grievance.
ABOUT THE AUTHOR
Stefan Venter joined SEESA Labour in August 2015 as a legal advisor. Before joining SEESA, he was a Director in a law firm after being admitted as an Attorney in 2013. He obtained his B.Comm Law degree in 2008 and his LLB degree in 2010 from the North-West University.