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In Article Archive, Members by Barney Jordaan6 Comments

In previous articles we looked at certain aspects of resignation, e.g. what are the employer’s rights if the employee gives ‘short’ or no notice; when does a resignation amount to a ‘constructive’ dismissal; deductions from an employee’s wages; and whether an employer may continue with a disciplinary hearing despite an employee having resigned?

In this article two further issues pertaining to resignation are addressed: May an employee withdraw a notice of termination and must the employer accept the withdrawal? And is there a distinction between desertion and resignation without proper notice?

Withdrawal of a resignation

Resignation (termination on notice) is known in law as a ‘unilateral act’, i.e. it does not need the cooperation of the person at whom it is directed to be effective. This is different from the conclusion of a contract, for example, which requires a ‘meeting of minds’ to be valid. Being a unilateral act means that a resignation is valid once it has been given, provided only that the employee was in a fit state of mind at the time of resignation. It also means that the employee is not able to withdraw the resignation at will: he / she needs the employer’s consent to withdraw the resignation. The employer is under no obligation to agree to the withdrawal. The contract simply comes to an end at the expiry of the notice period.

If the employee resigns without giving proper notice, it is still a unilateral act that signifies that the employment relationship will come to an end. In this case the employee is also not able to withdraw the resignation. However, if the employee resigns in a huff the employer would be well advised not to simply say ‘good riddance’ but should sit the employee down and try to understand the reasons behind the resignation. It may be that the employee’s situation at work has become intolerable and if the employer does not take reasonable steps to remedy the situation it may open itself up to a complaint of constructive dismissal.

Desertion versus resignation

Desertion means that the employee leaves his / her workplace without permission with the intention of never returning. It therefore goes beyond being AWOL: the intention to return must be made clear through the words or conduct of the employee. For example, if an employee leaves without permission and is then found working for someone else, the employer may conclude that the intention not to return is evident from the employee’s conduct.

An employee who ‘resigns’ from his / her employment without proper notice is, strictly speaking, deserting. In theory the employee could be ‘charged’ with desertion but this will in most cases be a waste of time. The employer can simply rely on the fact that the employee has repudiated his / her contract by leaving without tendering a proper resignation (a form of misconduct) and dismiss the employee for that reason. This assumes, of course, that the employer has sufficient evidence that the employee has indeed resigned and failed to give proper notice. A more pragmatic option may be to wait until the contractually required notice period has run out, upon which the employment relationship will come to an end.

Barney Jordaan of Maserumule Consulting for

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  1. Hi my daughter was called in and told that she had two choices: resign with immediate effect or go to disciplinary enquiry for being off sick often recently (she has not had any written or verbal warnings in this regard). She is young and this is her first experience of this sort. She panicked and signed her resignation letter.
    Can she retract her resignation? She is a contractor. Thanks

    1. Reply to Mish: A resignation cannot be retracted. The only thing she can do is to challenge the validity of the resignation on the basis that it was done under duress. Considering that she had the option to state her case in a disciplinary hearing, that would be difficult to prove.

  2. My daughter gave 4weeks written notice, within 10 days she spoke to her employer ,an asked to retract it . Her employer verbally accepted, an asked my daughter to put it in writing , which she did there an then in the office . Her employer took the letter an said it was fine , an had been withdrawn . She has since received a letter saying she no longer is employed by them .. Please advise , her boss will not even talk to her !!

    1. Reply to Hayley: Based on the information provided, it was agreed that she would remain in employment. The employer’s actions would therefore amount to dismissal. Your daughter may refer the matter to the CCMA.

  3. Hi

    A colleague of mine resigned,he had received a job offer that happened to be one of those international faud cases. The very same day he tries to retract his resignation,the resignation had been accepted, so the retraction t was not approved thus now he is in a bitter situation. please advise on how to proceed with a matter like this one.

    1. Reply to Sifiso: A resignation is effective from the moment that it is effectively communicated to the employer. If the employer does not agree to the “retraction”, that is the end of the matter – there is no recourse against the employer.

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