October 12, 2017

Can an employee withdraw a resignation?

A resignation is one of the means of bringing a contract of employment to an end. Hence, a resignation is a unilateral action. An employee does not (necessarily) need the employer’s cooperation when tendering in his/her resignation and the employer need not accept the resignation for it to be effective. Most people are still not certain about the notice periods required by South African law when it comes to resignation. Section 37 of the Basic Conditions of Employment Act 75 of 1997 (as amended), provides notice periods not less than:

  • One week if the employee has been employed for six months or less;
  • Two weeks if the employee has been employed for more than six months, but not more than a year;
  • Four weeks if the employee has been employed for more than a year or the employee is a farm worker or a domestic worker who has been employed for more than six months.

What if the employee now wants to retract his/her resignation?

It is of paramount importance that an employee quickly inform his/her employer, should changes arise from his/her mind a week or so later after handing in the resignation. It is entirely up to the employer as to whether or not to allow the employee to retract the resignation. In cases where there may be underlying issues behind the resignation, it always advisable for the employer to sit the employee down and try to understand the reasons behind the resignation, because it might happen that an employee gives in his/her resignation, when he/she is not in a fit state of mind.

If the employee changes his/her mind and wishes to withdraw the resignation, it is no longer a unilateral matter, because the employer must agree to the withdrawal. Generally speaking, an employee does not have the right to unilaterally withdraw his/her resignation once handed in. However, case law has shown that an employee may withdraw a resignation if there are some special circumstances in relation to the employee’s decision to give his/her resignation.

The employee should not be denied the opportunity to withdraw the resignation, if the “special circumstances” do exist. In the case of Kwik-Fit (GB) limited v Lineham [1992] IRLR 156, it was decided that if the employee submits his/her resignation in the heat of the moment and special circumstances exist, then the employer should investigate the matter and be sure of the employee’s intentions. These “special circumstances” may include bullying and verbal abuse, to mention but a few. In the Kwik-Fit case, it was discovered that the employee only resigned because of the humiliation he received from his manager.

In conclusion, in cases where the employee’s resignation is suspicious, the employer should allow a cooling-off period to ensure whether the employee really meant to resign. A fair cooling-off period may be a day or two, depending on the facts of the case. If the cooling-off period is denied, then the courts might decide that the employee did not actually resigned, but rather that it is a case of constructive dismissal.

Author: Koena Seanego

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