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 www.labourwise.co.za
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