Resignation is a voluntary, unilateral act by an employee which does not require the employer’s acceptance in order to be valid.
The Basic Conditions of Employment Act requires that notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee.
The question which often arises is whether a verbal resignation may still constitute a valid resignation?
In Sihlali v SA Broadcasting Corporation Ltdthe Court said:
A resignation is a unilateral termination of a contract of employment by the employee. The courts have held that the employee must evince a clear and unambiguous intention not to go on with the contract of employment, by words or conduct that would lead a reasonable person to believe that the employee harboured such an intention …. Notice of termination of employment given by an employee is a final unilateral act which once given cannot be withdrawn without the employer's consent …. In other words, it is not necessary for the employer to accept any resignation that is tendered by an employee or to concur in it, nor is the employer party entitled to refuse to accept a resignation or decline to act on it.
A resignation is established by a subjective intention to terminate the employment relationship, and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention. The courts generally look for unambiguous, unequivocal words that amount to a resignation ….
In Lottering and Others v Stellenbosch Municipalitythe Court summarized the common-law rules relating to termination on notice by an employee as follows:
- Notice of termination must be unequivocal – Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd;
- Once communicated, a notice of termination cannot be withdrawn unless the employer agrees to the withdrawal – Rustenburg Town Council v Minister of Labour; Du Toit v Sasko (Pty) Ltd;
- Termination on notice is a unilateral act – it does not require acceptance by the employer–Wallis Labour and Employment Law para 33 at 5 – 10
- Resignation must be effective immediately or from a specified date - African National Congress v Municipal Manager, George Local Municipality and Others
In the recent decision of Mnguti v OK Meats SA (Pty) Ltd t/a Dawn Farm, the Labour Court held that it is possible for an employee to resign by way of conduct, or verbally, without a written resignation being submitted.
When deciding whether a valid resignation exists, it must be measured against the above parameters. A resignation does not necessitate mutual agreement and can be given verbally, provided that the intention to resign is clearly and unambiguously communicated.
Our next bulletin will focus on the withdrawal of resignation, specifically the exceptional circumstances in which an employer may be obliged to agree to the withdrawal of the resignation as sought by the employee.