Resignation is topic that often repeats itself. Employers often want to know – can an employee withdraw their resignation?
Disciplinary action and resignation goes hand in hand
Employees often overreact when they are served with a notice to attend a disciplinary hearing and impulsively opt to rather resign than to endure the scrutiny of a disciplinary hearing. The question remains – can the employee retract his resignation after he cooled off and composed himself?
The scenario
This aspect was dealt with by Commissioner BS Mthethwa in the matter of Asuelime v University of Zululand (2017).
The applicant, a senior lecturer, was charged with plagiarism and summoned to a disciplinary hearing, which he refused to attend on the ground that he resigned. He later attempted to retract his resignation, but the respondent informed him that it had been accepted.
On 28 February 2017, the applicant was served with a notice to attend a disciplinary hearing scheduled for 2 March 2017, which was later rescheduled to 22, 23 and 24 March 2017. The applicant refused to accept the notice on the basis that he resigned. At the time the respondent could not find any record of the applicant’s resignation. However, it was common cause that the applicant tendered his resignation on 1 March 2017 and his last working day was to be on 31 March 2017.
On 22 March 2017, the Human Resources Manager found the applicant’s resignation form, the respondent accepted and approved the resignation and informed the applicant of same. The applicant notified the respondent that he had decided to retract the resignation.
The applicant believed that the respondent’s action amounted to dismissal on 24 April 2017 and referred a dismissal dispute in terms of Section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995 (LRA) as amended. The applicant sought reinstatement as a remedy and he also sought to be awarded compensation as provided for in Section 193 read with Section 194 of the LRA. The defence that was raised by the applicant was that he was forced to resign and secondly because he had retracted his resignation he was forced to leave on 31 March 2017 and that must be regarded as a dismissal.
The respondent, on the other hand, contended that there was no dismissal because it had accepted the applicant’s resignation and had advised the applicant accordingly. The respondent further contended that the matter should be dismissed since the applicant had resigned on his own volition.
The Commissioner had to determine whether the applicant resigned or was dismissed. In terms of the Basic Conditions of Employment Act 75 of 1997 (BCEA), a contract of employment may be terminated by either an employer or an employee by giving written notice, except in the case of illiterate employees. The notice of termination of the contract of employment is specifically regulated by Section 37 of the BCEA.
The applicant had tendered his resignation on 1 March 2017 and served 1 month’s notice, therefore there was no employer-employee relationship in existence after 31 March 2017. The Commissioner further stated that it is not a prerequisite that an employer should accept resignation from an employee before it could become effective. This principle emanated from the fact that the mutual cancellation of a contract is in itself a binding contract on both parties. There can, therefore, be no doubt that the applicant had resigned on 1 March 2017. He then formally left his employment on 31 March 2017 after serving a 1 month notice period. The fact that our labour law permits an employer to either allow the employee to continue to render his services for the entire notice period or to terminate the contract with immediate effect and pay the employee in lieu of notice, confirms the stance that there is no requirement for an employer to accept the resignation.
When employees resign
Resignation is the unilateral decision of the employee which does not require any formal acceptance from the employer. Section 13 of the Constitution of the Republic of South Africa 108 of 1996 provides that no one may be subjected to slavery, servitude or forced labour, therefore, our courts hold the view that the employer does not have to accept and approve the resignation of the employee.
The Commissioner accordingly found that there was no dismissal as defined in Section 186 of the LRA on 31 March 2017 and as such this termination does not fall within the ambit of the LRA.
ABOUT THE AUTHOR
Nadia Brits obtained her BCom Law and LLB degrees from the University of Pretoria in 2007 and 2009 respectively. She completed her articles at the Legal Aid Board and joined SEESA Labour at our Cape Town office in March 2014 as a legal advisor.