Thinking about quitting your job? Read this first

March 21st, 2010

Don’t resign unless you really want to leave
Employees should be quite sure that, when they resign from their job, they really want to leave. According to case law it may not always be possible to change your mind and withdraw your resignation. In a well publicized case, K. Masondo v Foschini, the Commission for Conciliation, Mediation and Arbitration (CCMA), an independent dispute resolution body, addressed the questions of whether an employee could unilaterally withdraw a letter of resignation.

Employer’s refusal
CCMA also looked at whether an employer’s refusal to accept this and unwillingness to allow the employee to resume her duties, constituted an unfair dismissal. The facts of the case were, in the main, common cause, which means they were not in dispute.

Read this story
The employee had an altercation with her manager in a store and then she submitted a letter of resignation. She gave her employer 24 hours’ notice that “I will be resigning”.
The employee was required to give two weeks’ notice, but had in fact given the employer only 24 hours’ notice in her letter. However, the employee then reconsidered her position and withdrew her resignation stating that her letter of resignation had not been officially accepted by the employer, and that it had never been her intention to resign. The employer did not accept the employee’s retraction of her resignation.

Unfair dismissal
Then the employee referred a claim of unfair dismissal to the CCMA by virtue of the fact that the employer would not permit her to resume her duties after withdrawing her resignation. The employee referred the matter to the CCMA on two grounds:
1) She had withdrawn her resignation within her notice period when she was still an employee; and 2) That the employer was obliged to formally accept or reject her resignation, and because the employer had not done so, she was entitled to withdraw such notice. The commissioner held that the employee was not unfairly dismissed and that the employer was indeed entitled to accept or decline the employee’s withdrawal of her resignation.

Employment contract
With specific reference to an employment contract, the commissioner held that “either party to a contract may resign from the contract” and that “withdrawal from a contract by one party is a unilateral action which does not require the consent of the other party”. As such, the employer was not required to accept the employee’s resignation in order for the resignation to be or remain valid. Or, as the commissioner noted further: “The employer is not required to confirm whether in fact it accepts the employee’s notice of termination.”The notice itself is a fait accompli. It does not, in my view, require acceptance.”

Recalling resignation
The employee’s revocation of her written resignation was held, therefore, not to have been binding on the employer. It follows that the employer’s refusal to permit the employee to resume her duties after withdrawing her resignation did not constitute a dismissal, let alone an unfair dismissal.

This entry was posted on Sunday, March 21st, 2010 at 2:55 am and is filed under Economy, Employment. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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