Do you have the right to withdraw your resignation?

Do you have the right to withdraw your resignation?

In terms of the Basic Conditions of Employment Act, notice periods are prescribed as follows: One week (employed for 6 months or less), Two weeks (employed for more than 6 months and less than 1 year) and Four weeks (employed for more than 1 year or is farmer/domestic worker, more than 6 months).

The aforementioned notice periods prescribed by the Act are only the minimum notice periods, therefore the employer and employee can agree to a notice period longer than the above. An employee however, cannot at a later stage rely on the Act.

To determine if an employee has resigned or not, an employee has to, either by word or conduct, show a clear and unambiguous intention not to go on with his contract of employment in such a wayas to lead a reasonable person to the conclusion that he did not intend to fulfil his part of the contract. It is important to note that anindication of the intent to resigndoes not necessarily constitute a resignation. The merits of each case will be taken into account when determining intent to resign or actual resignation. This distinction is important as situations often arise where an employee has tendered their resignation but then later realises that he now wants to withdraw it.

In the past, courts have held that once notice of resignation is given to the employer, it is not necessary for the employer to accept it. If the employer chooses not to accept the employee’s resignation it will essentially mean that the employee is to remain in employment against his will and will reduce the relationship to a form of indentured labour.

Thankfully the courts have moved away from this practice and the Labour court has confirmed the common law requirements on resignation of employment in the case of Lottering & others v Stellenbosch Municipality (2010) 19 LC 6.6.1 and [2010] 12 BLLR 1306 (LC). It was confirmed that notice of resignation is a unilateral act and does not require acceptance by the employer. It can therefore be said that there is no requirement for the employer to acknowledge receipt of the resignation, or to communicate with the employee on the matter. Once notice is communicated however, it cannot be withdrawn unless both the employer and employee have agreed to it. There is no legal entitlement to withdraw a resignation and contrary to popular belief, there is no such thing as a “cooling off” period as stated in SACWU obo Sithole / Afrox Gas Equipment Factory (Pty) Ltd [2006] 6 BALR 592 (MEIBC). If, however, special circumstances exist relating to the context of the resignation, an employee may withdraw his notice of resignation.