A new case has cleared up misconceptions around whether and when an employee can withdraw their notice of resignation in South Africa.
Jacques van Wyk, director at Werksmans Attorneys and Michiel Heyns, a senior associate for the group, unpacked a recent case that dealt with whether an employer consented to an employee withdrawing their resignation.
The court found that once an employee has resigned, they cannot withdraw the resignation unless the employer consents. According to the legal experts, this consent must be given prior to the expiry of the employee’s notice period when the resignation becomes effective; failing would result in a fresh agreement of employment to be concluded.
The Labour Court (LC), in the case of Monareng v DR JS Moroka Municipality, reaffirmed the principle that resignation takes effect once communicated to the employer, said Werksmans.
They added that a withdrawal of resignation must be made during the notice period in order to be consented to.
Facts
The matter related to the resignation of an employee, which the employee subsequently endeavoured to withdraw. Initially, the employer did not consent to the withdrawal of the resignation. Just over a month later (and after the expiry of the employee’s notice period), the employer consented to the withdrawal of the resignation.
The Court determined that consent could not be granted after the termination of the employee’s notice period, said Werksmans.
The employee was employed as a deputy financial officer of the municipality. The municipality was placed under administration in terms of section 139 of the Constitution of the Republic of South Africa, 1996, which led to the appointment of one Mr M as an administrator, bestowing on him the powers of the municipal manager.
“The employee resigned with immediate effect due to ill health on 1 April 2021 in a letter addressed to Mr M. Thereafter, on 15 April 2021, the employee withdrew his resignation. Mr M responded on 15 April 2021 and advised the employee that his withdrawal was not accepted,” said Werksmans.
Subsequently, on 11 May 2021, the municipality resolved to ratify the appointment of another municipal manager for the period 6 – 11 May 2021 (Mr B) and to appoint Mr M as acting municipal manager from 12 May 2021. On 10 May 2021, Mr B advised the employee that he accepted the withdrawal of the employee’s resignation.
The employee then argued that Mr M was not the person to whom his withdrawal of the resignation should have been communicated because he was not the municipal manager (representing the employer) at the time.
Findings
The LC held that:
- Mr M had the requisite locus standi (legal capacity) as the municipal manager and was therefore empowered to reject the employee’s attempt to withdraw his resignation.
- Resignation is a voluntary and unilateral act that ends the employment relationship.
- Anyone who is superior to an employee is a representative of an employer and can receive a resignation.
- Resignation takes effect once communicated to an employer, and it is incapable of being withdrawn unless the employer consents thereto.
- In this case, consent for the withdrawal of the employee’s resignation was granted after the expiry of his notice period. He was, therefore, no longer employed. As such, he should have sought to be re-hired or re-employed.
- A withdrawal of resignation must be made during the notice period in order for it to be consented to.
- The employee had resigned effectively, and the resignation was incapable of being withdrawn. There is no legal requirement that resignation must be accepted. A contract of employment can only be brought back into life the same way it was created, which is through offer and acceptance.
Commentary: Jacques van Wyk (Director) and Michiel Heyns (Senior Associate) at Werksmans Attorneys
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