Three Frequently asked questions regarding resignation

BY TRACEY MOUTON - DIRECTOR: HUMAN RESOURCES & LABOUR LAW DEPARTMENT AT GOLDBERG & DE VILLIERS INCORPORATED - MARCH 29, 2016

Although a well drafted contract of employment sets out when a contract of employment may be terminated, most contracts do not cater for the manner in which an employee is to resign.

The following questions arise:

  1. Is a verbal resignation sufficient? The Basic Conditions of Employment Act sets out that a resignation is to be in writing, unless the employee is illiterate. Case law however has set out that the test is in fact whether the employee has either by his word or conduct, shown a clear and unambiguous intention not to go on with his contract of employment in that he has acted in a manner which has led a reasonable person to the conclusion that he did not intend to fulfil his part of the contract.
  1. Must the resignation be accepted by the employer? Not at all. A resignation is a unilateral act and as such does not require any acceptance by the employer party.
  1. May a resignation be withdrawn by the employee? The obvious answer is that, yes a resignation may be withdrawn. However, an employer does not have to accept the withdrawal of the resignation and as such the resignation would stand. Employers however must be weary of the resignation in anger and subsequent withdrawal. A failure to accept the withdrawal in such circumstances may lead to litigation.