By Teboho Mokoena

Imagine this scenario: On 1 April 2021, A submits a formal letter of resignation. The letter expressly states that the resignation, due to ill-health, is with immediate effect. On 15 April 2021, A submits another letter to the employer, except that on this occasion, A seeks to retract his letter of resignation.
Having not heard from the employer, A returns back to work on 19 April 2021. On the other hand, the employer argues that they did issue a response, dated 15 April 2021, notifying A that they do not consent to the withdrawal of their resignation letter dated 1 April 2021. A argues that in light of the following grounds, he is still an employee:

  1. He returned to work on 19 April 2021, and the employer did not object to his return.
  2. He only received a response from the employer, dated 15 April 2021 on 23 April 2021, well after he had returned back to work.
  3. On 25 April 2021 he received his full salary.
    To compound matters even further, there happens to be changes within the management echelons, and another manager (to be referred to as C), while at the helm, accepts A’s withdrawal of resignation on 10 May 2021. The initial manager (referred to as B) returns to the wheel, so to speak, and reverses C’s decision. B also instructs payroll to terminate A from the system. As a result, A doesn’t receive his full salary for the month of May. Aggrieved, A turns to the courts, essentially seeking to have his withdrawal of resignation confirmed.
    This is briefly what transpired in the matter between one Monareng vs the Dr JS Moroka Municipality, in a matter which was heard in the Labour Court on 16 March. Judgment was handed down on 18 March.
    This case raises a couple of
    1.What is resignation?
  4. When does it take effect?
  5. Can a resignation be withdrawn, and under which circumstance is this permissible?
  6. To whom must a resignation letter be submitted for it to be effective?

In this matter, the Labour Court held:

  1. A resignation as, a voluntary act, is a unilateral act that ends an employment relationship.
  2. A resignation takes effect once it has been communicated to an employer. What is needed is proof that the employer received and read the intended message.
  3. A resignation cannot be unilaterally withdrawn, unless an employer consents thereto.
  4. Any person who is legally superior to an employee who resigns, within organisational structures, is permitted to receive a resignation letter for such a letter to be effective. The court held that such a person represents an employer one way or another.
    The latter point is critical in the context of this case in that A sought to argue that, at the time of his resignation the position of the municipal manager was vacant, and therefore, in essence, there was no one who had the authority to assume the role of an employer.
    If we are to take A’s flawed argument to its logical conclusion, the fact that there was no municipal manager who had been permanently employed implied that the municipality could not make any administrative decisions, not limited to, but including decisions relating to its staff members.
    It is patently clear that this line of thought is deeply problematic in that it ignores the fact that organisations, at one point or another, do have vacancies, and need to put in place persons to act in those positions.
    It is common cause that, unless specified, those who are appointed to act, do so with the full authority to take necessary decisions, as and when required, to ensure that such entities are not rendered dormant on account of certain positions being vacant.
    The court also found it ironic that A submitted his resignation letter to the same person B, only to later argue that B did not have the requisite powers to act on behalf of the municipality on account of the fact that B was merely acting as a municipal manager.
    Why did A not wait for a permanent municipal manager to be appointed before he could tender his resignation, if it was his reasoning that only those who are permanently appointed have the authority to take decisions on behalf of an employer?
    Answer: it would constitute the height of organisational absurdity to imagine a scenario where no persons can be hired, paid, trained, promoted, dismissed or resign simply because the head of the organisation or any other person with the delegated authority happens to act in a particular position. It defies logic to argue along these lines. In addition to the above afterthought to bolster his case, A also argued that another manager C, had subsequently accepted his withdrawal of resignation. In this regard, the court, rightly so, dismissed this argument, ruling that once B had accepted the initial resignation, the employer-employee relationship had ceased to exist, effective from 1 April 2021, with immediate effect, as per A’s own resignation letter.
    The only permissible thing that C could do was to rehire or re-employ A, subject to the applicable municipal rules and regulations, something that C had evidently not done, in any event, so that the purported rehiring or re-employment was also irregular.
    Another argument that A put forth was that in light of the fact that he had not served any notice, in breach of his contract, it was found he had not resigned. This is yet another hobbling line of thought which was equally dismissed by the court.
    You can very well imagine a situation where employees routinely resign on the spot, only to resurface later, arguing that an employer should ignore the fact that they have resigned, simply because they, on their own accord, and in breach of contract, failed to serve notice.
    In this regard, the court took a view that it can be permissible for an employee to retract their resignation letter while serving notice, but not after the notice period had expired. Even then, the employer still needs to consent to such a retraction, it is not automatic.
    In this case, A did not serve any notice. A’s case was made even more difficult by the fact that when C purportedly accepted his retraction, the notice period that A was supposed to have served had in any event since lapsed. Lastly, A raised two further points which are worth mentioning. One was that he had returned to work on 19 April 2021 without any objection from A. This, in his view, meant that A consented to his return to work. In this regard, the court held that silence, although golden, does not mean acquiescence. The fact that A did not object does not imply consent. The second last argument was that on 25 April 2021, A received his salary. The court held that this could have happened because ordinarily, payrolls are prepared in advance on a specific day, and it was possible that A was paid erroneously on account of the fact that the person(s) responsible for payroll of the municipality were not informed in time about his resignation. In the end, the court felt that did not, in any material way, assist A’s case much.

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