Avoid ending up in court when an employee resigns

03 May 2022

In a recent labour court judgement, the legal nature of resignation was considered, as well as if and how resignations could be revoked.

We are currently witnessing an enormous number of resignations globally, for reasons including but not limited to employees seeking to access their provident fund benefits. Employees want to start their own businesses. Reduced working hours have never been adjusted, leading to employees searching for greener pastures.

Be aware of ending up in court over a resignation as was the case in Mohlwaadibona vs Dr JS Moroka Municipality, Case no: J718/21.

The facts presented were as follows:

In February 2019, Moroka employed Monareng as a Deputy Financial Officer. On 1 April 2021, Monareng tendered his resignation with immediate effect due to ill health. On 15 April 2021, Monareng sought to withdraw his resignation. He awaited the acceptance of his withdrawal in order to resume his duties on 19 April 2021.

On 15 April 2021 the appointed administrator, Mhlanga, responded to Monareng and informed him that his withdrawal was not accepted and that he should not present himself on 19 April 2021. Monareng’s version was that he only received the response dated 15 April 2021 on 23 April 2021 after he had reported for duty on 19 April 2021 without any objection from Mhlanga. On 25 April 2021, the usual payday at Moroka, Monareng received his salary. Monareng opted to take legal advice after receiving the letter of response on 23 April 2021.

The resignation of Monareng did not happen in the heat of a moment. He provided reasons why he was resigning, which was due to ill health. He had a subjective intention to quit and his conduct of continuing to not report for duty from 1 April 2021 to 18 April 2021 objectively confirms his personal choice to leave.

Conclusion

No formal action by the employer was required to make the resignation effective. Once a resignation has taken its legal effect, consent to withdraw means re-employment or rehire. Re-employment and / or rehiring requires compliance with specific statutory requirements in the local government context.

The only way to prevent the legal effect is if the resignation is withdrawn by consent. Therefore, it is essential to be very cautious when any attempts to withdraw a resignation are made. Ensure that your intentions are clearly communicated and recorded in writing.

See also:

• Thinking of resigning because continued employment has become intolerable – think again
• Resigning to avoid disciplinary action is not the answer
• The legal timing of a financial incentive in lieu of a resignation
• Thinking of resigning with immediate effect? Think again.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)