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The intention to resign

In Article Archive, Article Archive - Home by Jan Truter4 Comments

Question: Is a statement by an employee of an intention to resign enough to terminate employment?

Answer: No, a resignation by an employee has to be in writing and has to be unequivocal.

Brief explanation:

The storm surrounding Patricia de Lille’s status as Mayor of the City of Cape Town, has brought the issue of resignation into the spotlight. During an interview on the radio station Cape Talk she referred to her intended court battle with the DA to “clear her name” and allegedly went on to say that “the morning after I have won the court case then I will resign from the DA.” The Democratic Alliance Constitution stipulates that “A member ceases to be a member when he or she …  publicly declares his or her intention to resign and/or publicly declares his or her resignation from the Party”.

If it is indeed so that De Lille has ceased to be a member of the Party, it raises consequential questions about her status as mayor and councilor, such as whether her tenure ceased automatically or whether it could be terminated summarily. This involves complicated legal questions that are set to be contended in court.

From an employment law perspective it is important to bear in mind that, in the first instance, the De Lille situation involves her resignation as member of the Democratic Alliance, not her resignation as an employee. The two should not be confused.

In the context of employment the Basic Conditions of Employment Act states clearly in section 37(4)(a) that “Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee.” Furthermore, the common law rule that a notice of termination must be unequivocal also applies to a resignation.

Jan Truter of www.labourwise.co.za

Comments

  1. There is also something of a “constructive dismissal” element to de Lille’s case. She can point out that the DA committee’s action had made her long-term relationship with the DA untenable. Resignation was recognition of a de facto circumstance rather than her breaking the relationship herself.

    1. Author

      It should be interesting to see whether this point is raised by her legal team.

  2. How can be not confused when its confusing ,if the case in court they must let it be.

    1. Author

      We all find the De Lille situation confusing, but we must not let it confuse our understanding of resignation in the employment context.

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