Article by Ngoni Goba (Senior Labour Advisor)
An employment relationship is a unique relationship between an employer and employee with reciprocal obligations. In a previous article we published entitled “This is not what I signed up for!” we discussed issues relating to how the terms and conditions of employment can be changed and how there is a requirement for an employer who seeks to change the terms of employment to consult with the employee and obtain their consent. An employer cannot act unilaterally.
On this note, there are however instances where an employee can act unilaterally. In another article we published entitled “Understanding the Differences between a Dismissal and a Resignation” we discuss the nuances between the two concepts and illustrated how the latter is a unilateral act by the employee. Simply put, a resignation is deemed to have taken place if the conduct of the employee, tacit or explicit, illustrates a clear and unambiguous intention to not continue with the employment contract.
An interesting scenario regarding resignations made its way to our courts in the matter between Mohlwaadibona v Dr JS Moroka Municipality  and posed numerous questions. Now that it has been established that a resignation is a unilateral act by an employee, can an employee unilaterally withdraw their resignation?
In this matter, the employee communicated his resignation to the employer on the grounds that his health had deteriorated to the point that he could not continue to render his services to the employer, however then sought to withdraw his resignation two weeks later. The employee then received a response from the employer to the effect that the withdrawal of the resignation had not been accepted. The court in this matter held that “resignation is a voluntary act is a unilateral act that ends the employment relationship. Resignation takes effect once communicated to an employer and it is incapable of being withdrawn unless an employer consents thereto.” The court further goes on to state that, “where an employee withdraws a resignation, all it means is that such an employee is seeking to be rehired or re-employed.”
The decision in this matter emphasizes the unilateral nature of a resignation. A resignation constitutes a unilateral termination of the contract of employment by the employee once it has been communicated, subject to the applicable stipulations relating to notice periods. This, in turn, would mean that should an employee seek to resuscitate the employment relationship they would need to enter into a new employment agreement with the employer. Resignation has very serious implications on the employment relationship as it terminates the relationship the moment it is communicated. Before tendering a resignation one ought to be sure that, that is indeed what they want and it would be prudent to obtain legal advice as there may be no way to opt out.
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