A new case has cleared up misconceptions about whether and when an employee can withdraw their letter of resignation in South Africa.
Jacques van Wyk, director at Werksmans Advocaten, and Michiel Heyns, senior employee of the group, unpacked a recent case about whether an employer agreed to an employee’s withdrawal of his/her resignation.
The court ruled that once an employee has resigned, cannot revoke the dismissal unless the employer agrees. According to the lawyers, this permission must be given before the expiry of the notice period of the employee at the start of the dismissal; failing that, a new employment contract would have to be concluded.
The Labor Court (LC), in the case of: Monareng v DR JS Moroka Municipality, reaffirmed the principle that the dismissal takes effect as soon as it has been communicated to the employer, according to Werksmans.
They added that a withdrawal of the resignation must be made during the notice period in order to get permission.
The case concerned the dismissal of an employee, which the employee subsequently sought to withdraw. Initially, the employer did not agree to the withdrawal of the dismissal. Just over a month later (and after the employee’s notice period expired), the employer agreed to withdraw the dismissal.
The court ruled that permission could no longer be granted after the employee’s notice period, according to Werksmans.
The employee was working as a deputy financial employee 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 a Mr M as Administrator, granting him the powers of the Municipal Manager.
“Due to illness, the employee resigned as of April 1, 2021 by letter to Mr. M.. The employee subsequently withdrew his resignation on 15 April 2021. Mr M responded on April 15, 2021 and informed the employee that his withdrawal was not accepted,” said Werksmans.
Subsequently, the municipality decided on 11 May 2021 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 with effect from 12 May 2021. On May 10, 2021, Mr. M. B informed 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 dismissal should have been notified, as he was not the municipal manager (representing the employer) at the time.
The LC ruled that:
- Mr M had the required locus standi (legal capacity) as a municipal manager and was therefore authorized to reject the employee’s attempt to withdraw his resignation.
- Termination 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 be fired.
- The dismissal takes effect as soon as it is communicated to an employer and cannot be revoked unless the employer agrees.
- In this case, permission to withdraw the employee’s dismissal has been granted after the expiry of his notice period. So he was no longer employed. As such, he should have tried to be rehired or re-enlisted.
- A revocation of the resignation must be made during the notice period to agree to it.
- The employee had effectively resigned and the resignation could not be withdrawn. There is no legal requirement that resignation must be accepted. An employment contract can only be revived in the same way it came into being, namely through offer and acceptance.
Comment: Jacques van Wyk (Director) and Michiel Heyns (Senior Associate) at Werksmans Advocaten
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