Resignations: if, what and when

2011-05-07 00:00

A RESIGNATION should be tendered with thought and full knowledge of the legal consequences. Employees are often under the impression that a resignation can be easily withdrawn. This is not the case.

The Labour Court, in the case of Lottering vs Stellenbosch Municipality, had to consider the validity of resignations, where the resignations did not comply with the notice periods required on termination of employment and where the employees, after having resigned, attempted to withdraw their resignations.

The employees attempted to argue that their resignations were not valid for the reason that they did not give the required contractual notice period. In other words, that the resignations could not stand because they were deficient.

The argument was that because the employees failed to give notice in terms of their employment contracts they had breached their contracts. The employer was therefore in a bind — either to hold the employee to the contract or to cancel it on grounds of the breach. Since the employer did not cancel on the grounds of the breach it was reasoned that the employees employment had not terminated.

The Labour Court confirmed these principles.

• Notice of termination of employment must be unequivocal.

• A resignation is a unilateral act. It does not require acceptance by the employer.

• Once a resignation has been tendered, it cannot be withdrawn unless agreed upon.

• Even though in practice, employers may accept a resignation, resignations become effective once they have been tendered, not as a result of acceptance by the employer.

• If a resignation is tendered with notice, the contract of employment only terminates when the notice period expires.

• If an employee resigns without giving notice, the employer is not obliged to pay the employee on the principle of “no work no pay”.

• If short notice is given (in contravention of the Basic Conditions of Employment Act (BCEA) or the contract of employment) the employer is entitled either to hold the employee to what is left of the contract or to cancel it summarily and sue for damages.

• If an employee does not give proper notice this does not mean that the resignation is invalid.

Based on these principles the Labour Court held that by resigning the employees had unilaterally terminated their contracts and dismissed the case with costs.

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