The “Great Resignation” is Upon Us – Know the Law!

“Signs of the "Great Resignation" are rippling across South Africa” (Business Insider report, 22 April 2022)
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The global pandemic-induced “Great Resignation” trend is upon us, and both employers and employees need to be aware of how our law views the whole question of employee resignation.

A recent Labour Court decision gives some valuable guidance –

The sick employee who tried to withdraw his resignation after a “miraculous” recovery

• The Deputy Financial Officer of a municipality under administration tendered in writing his immediate resignation from his post on the grounds of ill health.

• Two weeks later he sought to withdraw his resignation stating “It gives me pleasure that my health as prompted resignation has miraculously improved that I am normal to endure the temperature in the area”.

• The municipality told him his withdrawal of resignation was not accepted and he applied to the Labour Court for an order reinstating him to his position with full salary and benefits.

• Many of the facts were in dispute, but critically the Court found that the employee “has by word shown a clear and unambiguous intention not to go on with his contract of employment”, that he did not act in the heat of the moment, that his failure to report for duty thereafter “confirms his subjective intention to quit”, that he communicated his resignation to the correct municipal official who had not objected to it and could be presumed to have accepted it, and that his request to withdraw his resignation was indeed refused by his employer.

The Court held accordingly that the employee’s resignation stood. In doing so, it answered a variety of important questions as follows –

The law on resignation: 7 critical questions answered

1. What is resignation and how does it affect the contract of employment? “Resignation as a voluntary act is a unilateral act that ends the employment relationship.” (The “voluntary” part is important here! In this case, the employee “…consciously elected to resign. He must be allowed to remain in that freely chosen path”.).

2. When does resignation take effect? “Resignation takes effect once communicated to an employer…”.

3. Who must the resignation be communicated to? When it comes to a corporate employer “In my view anyone superior to an employee is sufficient. He or she represents an employer one way or another.” (No doubt some contracts of employment will specify exactly how and to whom a resignation must be communicated).

4. Must an employer accept a resignation to make it effective? No, “…there is no legal requirement that the resignation must be accepted.”

5. What if the employee must serve a notice period? This makes no difference; the resignation is effective once communicated: “…This is so even if an employee is contractually obligated to serve a notice period and does not serve it.”

6. Can an employee unilaterally withdraw a resignation? No, “… it is incapable of being withdrawn unless an employer consents thereto”.

7. If an employer does accept a withdrawal of resignation, is that a reinstatement? No, “…where an employee withdraws a resignation, all it means is that such an employee is seeking to be rehired or re-employed … A contract of employment can only be brought back from the ashes in the same way it is conceived; namely offer and acceptance.” (The lesson for employers here is to be crystal clear in rejecting a request to withdraw a resignation, as anything less might be construed as re-employment).