Resignation or Dismissal – Know the Difference

At first glance one would be forgiven for assuming that the differences between a resignation and a dismissal are obvious, however there are quaint and intricate details that may blur the lines. A resignation and a dismissal are firstly similar in that they both result in the termination of an employment relationship. The difference lies in the manner that the employment relationship is terminated. In simple terms, a resignation is a unilateral termination of the employment relationship by the employee; while a dismissal is a unilateral termination of the employment relationship by the employer.

These differences are extremely important to take note of as they form the basis of legal rights and recourse, if any, once the employment relationship terminates.

• Dismissal: The Labour Relations Act 66 of 1995 (LRA) protects an employee against being unfairly dismissed and provides recourse in the event that an unfair dismissal on the part of the employer is established. In this event an employee that has been dismissed may contest the dismissal through referring the dispute to the CCMA or the relevant Bargaining Council (MIBCO Dispute Resolution Centre) which would then determine whether the dismissal was fair or not.
• Resignation: An employee who resigns cannot be said to have been dismissed, and thus would not have the same rights, protection or recourse under the LRA as an employee that has been dismissed. [A word of caution, constructive dismissal is excluded in this discussion]

Blurring Lines

The CCMA was faced with the following scenario in Mulabisane and Traditional African Home- Stays South Africa (Mulabisane). The Applicant (employee) in this dispute alleged that he was unfairly dismissed whilst the Respondent (employer) strongly opposed.

The Applicant’s basis that the dismissal was unfair was premised on the fact that the Applicant had informed his manager that he intended to terminate the employment relationship and pursue his studies full time. In response to the expressed intention, the Applicant’s manager responded by stating that all funds due and owing to him would be paid out and that she did not want to see him anymore. The Applicant in his case before the CCMA stated that it was not his intention to resign but insisted that he was merely going back to school on a full time basis.  

In arriving at a ruling with the facts presented to the CCMA the Commissioner made reference to and relied on the Labour Appeal Court Judgment (LAC) in CEPPWAWU v Aluminium 2000 CC. The LAC held that in ascertaining whether a resignation has taken place, due regard must be paid to the express and tacit conduct of the employee. According to the LAC a resignation would have been effected if the conduct of the employee, illustrates a clear and unambiguous intention to not continue with the employment contract.

The Commissioner subsequently found in the Mulabisane case that the fact that the Applicant would not be able to render his services to his employer as per the employment agreement satisfied the elements of a resignation and dismissed the Applicant’s application.

In another dispute, Quinn v Singlehurst Hydraulics (SA) Ltd [2005] 6 BALR 673 (CCMA) the Applicant told a co-employee, who was asked to collect the company’s keys from the Applicant and inform him that he must not set foot on the employer’s premises, that he will resign. The co-employee relayed this to the Managing Director of the company who in turn replied that he accepted the resignation of the applicant, and that the applicant was not required to work out his notice period.

The Applicant fell ill after that evening and never tendered his resignation. An unfair dismissal dispute was referred to the CCMA. The Commissioner, after having regard to all of the factors, found that the Applicant had in fact been unfairly dismissed. The mere fact that the applicant indicated an intention to resign did not constitute a resignation. There was no clear and unambiguous intention in writing or verbalised to confirm the applicant’s resignation on a specific time or date.

Conclusion

It is important that you know and understand the element of resignation namely a clear and unambiguous intention in writing or verbalised to the employer. 

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(Article by Ngoni Goba and Tiekie Mocke)

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