2022-05-23

Resignations: Withdrawing resignations, Immediate resignations and resignations when faced with dismissals

Alicia Venter

Can I withdraw my resignation and notice of termination? 
Yes, but the employer does not have to accept it.

The CCMA award this year stated “When an employee resigns their employment and then seeks to withdraw the resignation, that can only be done with the consent of the employer. Conversely, where the employer has terminated the employment relationship by giving notice of termination, the employer needs the employees consent to a retraction.” (Zaphia September Vs Inyosi Empowerment (2022).

In other words, the contract that was ended by the employer can only be reinstated with the agreement of the other party to the agreement, the employer.

Be sure that when you receive a resignation letter or retraction of a resignation letter that this is all done in writing, the same with when accepting or declining.

Can an employee resign immediately, or do they have to work notice?

The minimum notice period for resignation is dictated by the Basic Conditions of Employment Act (see below) unless otherwise agreed upon by the employer.

The Labour Court Ruling held that if an employee resigns without giving notice that the employee is in breach of their contractual agreement and that the employer can approach the courts for relief.  This unfortunately means that an employee can give immediate resignation and the company would have to proceed with a civil matter for breach of contract.

Its unfortunately also not possible to withhold the final salary or accumulated annual leave of an employee for not working notice unless it was otherwise agreed upon. Section 34 of the Basic Conditions of Employment Act prohibits deductions from an employee’s salary without written consent of that employee. It’s suggested that it stipulates in the contract of employment that the employee gives consent that any leave accumulation and or final salary will can be kept in lieu of notice not worked to avoid civil court cases for unlawful deductions made.

Can an employee resign when faced with discipline?
Yes, of course, and it’s not uncommon. When faced with discipline and possible dismissal employees commonly want to resign with immediate effect rather than face the embarrassment of a disciplinary hearing and avoid being dismissed.

In some instances, its beneficial for the employer to accept the resignation and to rather pay out the employee in lieu of notice to avoid any further damages to either the company and or its reputation.
In cases where an employee should face discipline and then resign as an escape route, the Labour Court ruled “that an employer may proceed with a disciplinary hearing even when an employee has resigned. The court further held that statutorily and contractually, an employee is bound to give at least four weeks ‘notice of their resignation and that there is no legal impediment to the prosecution of disciplinary proceedings and subsequent dismissal during an employee’s notice period.” 

An employee’s employment contract only comes to end by fulfilling the resignation period, and disciplinary action can take place in that notice period. (Coetzee v Zeith Mocca Foundation Trust and Others (2018)

Back To Basics of resignations:
The Basic Conditions of Employment Act is clear on the notice period that should be given when resigning:
• 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 one year.
• Four weeks if the employee:
(i) Has been employed for one year or more; or
(ii) Is a farm worker or domestic worker who has been employed for more than six months.

An employer is liable to pay an employee for their notice even if the employer does not want the employee to serve his or her notice period. If the employer does not want the employee to work their notice, the employer must pay them, out their notice and the employee would not work the notice period.  If the employee refuses to work the notice period, they forfeit the notice pay.

An employee giving notice with regards to resignation needs to keep in mind what was agreed upon contractually, some employers prefer a full calendar months’ notice whereas another employer will only demand 4 weeks from the date of notice given.  Section 37 (5) of the Basic Conditions of Employment Act states that notice cannot be given:
• During any period of leave to which the employee is entitled to;
• Not run concurrently with any period of leave to which the employee is entitled to in terms of chapter three except for sick leave.
Section 20 (5) (b) further prohibits and employer from requiring or allowing an employee to take annual leave during a period of notice.

Alicia Venter
admin@brentwood.co.za

Mark - 12:47 @ Industrial Relations, Human Resources | 1 comment

 
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