Wallis AJ (Cameron J and Van der Westhuizen J concurring) in Toyota SA Motors (Pty) Ltd v CCMA    (CCT228/14) [2015] ZACC 40 ; [2016] 3 BLLR 217 ; (2016) ILJ 313 (15 December  2015) at paras [200] – [209] inclusive:

Although the three judges agreed with the majority judgment of Nkabinde J they regarded it as necessary to express some reservations about aspects of the minority judgment of Zondo J, more particularly regarding the nature and effect of a resignation.  They suggest that the time may have come to re-examine old common law authority.  This could entail allowing an employee to withdraw a resignation before it has been acted upon by the employer.  This would also mean that a resignation is no longer regarded simply as a unilateral act of termination by an employee that does not require acceptance to be valid and binding.

Excerpts [footnotes omitted]

Resignation

“[200]     My second concern arises from my colleague’s discussion of the implications of Mr Makhotla having tendered his resignation on 7 March 2011, after he had been apprised of the fact that Toyota intended to pursue disciplinary proceedings against him arising from his absence without leave.

I start by identifying where we have common ground.  If an employee’s resignation flows from the employer rendering continued employment intolerable, that is an unfair dismissal and is dealt with like any other unfair dismissal under the LRA.  Once the employee’s employment has come to an end in consequence of resignation, it is generally speaking no longer open to the employer to conduct disciplinary proceedings against the employee, at least not with a view to terminating their employment.

If by the time an unfair dismissal dispute has been resolved the employee’s employment would have terminated, for example, because a fixed term contract of employment had expired or they had passed the age for retirement, it is not open to the commissioner to reinstate them.

[201]     In [143] of his judgment Zondo J says:

“if, in the present case, the resignation had preceded the dismissal, the CCMA would have had no jurisdiction and an award would not have been competent because an employee who resigned cannot be reinstated”.

But it is difficult to comprehend on what basis such an employee would be seeking their reinstatement.  Apparently the suggestion is that there may have been a change of heart after the resignation took effect, but that is rare and the claim for reinstatement would fail.  If the employee claimed that the employer made continued employment intolerable, that is an unfair dismissal, but it is the paradigmatic case where reinstatement is neither sought nor granted.  After all if continued employment has been rendered intolerable the employee is hardly likely to seek reinstatement.  And, if they have resigned and are content with that, they will also not do so.  Indeed there would be no basis at all for them to approach the CCMA.

I do not wish to say definitively that this is impermissible where an issue, such as a forfeiture of the entitlement to exercise share options, is engaged.  If a dishonest employee resigns ahead of being discovered, and the terms upon which a benefit was afforded to them provided that they would forfeit that benefit if dismissed for dishonesty, it would be an unacceptable conclusion to say that, as they had resigned, they could no longer be dismissed and hence remained entitled to the benefit.  Accordingly I would reserve this question for another day.  To that extent I have reservations about the definite statement in [142] of Zondo J’s judgment.

[202]    The only situation where the problem may arise is a case like the present where the employee has tendered their resignation, but is dismissed before the resignation can take effect.  Here there are two possible scenarios.

If the employee seriously intended to resign and persisted in that stance, why would they either participate in the disciplinary proceedings leading up to their dismissal, or approach the CCMA?  Their only purpose in doing so would be to have the blot of dismissal removed from their record, or to avoid the forfeiture of a benefit, or something similar.  They would not be seeking reinstatement.

That leaves only the situation of an employee who tenders their resignation, but subsequently, and before it has taken effect and brought about the termination of the contract of employment, repents of that decision and seeks to withdraw from it.  That appears to have been the situation with Mr Makhotla.

[203]    The main judgment amply explains in [49] why this is not a point on which Toyota can rely at this stage.  It is plainly one devised long after the event, having not featured

  • at the internal disciplinary hearing;
  • before the CCMA;
  • in either the founding affidavit or the supplementary affidavit in the review application; or
  • before Fourie AJ in the Labour Court.

The evidence was that the resignation was not accepted and it was not thought of again until the application for leave to appeal to this Court.  In those circumstances there may have been an agreement, express or tacit, to permit Mr Makhotla to withdraw his resignation.  We cannot tell because the point was not canvassed.

[204]     My further concern lies with the legal proposition at the commencement of [144] of Zondo J’s judgment that

“an employee has no right of withdrawing a valid and lawful resignation once it has been communicated to the employer except with the consent of the employer”.

That proposition is derived from an old case in the then Transvaal Provincial Division.  In Rustenburg the town council had met to discuss certain differences that were said to have arisen between employees in its electricity department.

On being informed that the differences had been resolved it decided to take no further action.  The following morning the town clerk was handed three notices of resignation by various officials in the electricity department, including the electrical engineer.  Later that day the engineer called upon the town clerk in his office and asked to see the letters.  They were handed to him and he proceeded to destroy them, apparently because he had been advised by the mayor to withdraw his resignation.  He had authority to act on behalf of the other two officials.  The council then met and resolved to accept the withdrawal of the resignations of the other two, but not that of the engineer.

[205]     Through his trade union the engineer applied to the Minister of Labour for the appointment of a conciliation board and such a board was appointed.  The council successfully applied for the board to be set aside, on the basis that the engineer’s employment had terminated as a result of his own voluntary act and not as a result of an act by the council.  The Court rejected an argument that the resignation had been withdrawn, saying:

“The giving of notice is an unilateral act: it requires no acceptance thereof or concurrence therein by the party receiving notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it.  If so, it seems to me to follow that notice once given is final, and cannot be withdrawn – except obviously by consent”.

[206]     Potgietersrust concerned the matron of a hospital, about whose conduct and performance there had been complaints.  These were considered by the hospital board, which then called her into a meeting and asked for her resignation.  She agreed to resign with effect from 31 December.  The chair of the board testified that the matron was confused at the time.  The secretary said that immediately after the meeting she sought to withdraw the resignation and make it effective from the end of January the following year.  The board refused to permit this, and when she did not leave the premises and continued to work and interfere with the duties of the nursing staff, it brought urgent proceedings for an interdict and her ejectment from the premises.  That order was granted on the authority of Rustenburg.

[207]     Are these old cases still good law in the light of the constitutional protection that workers now enjoy to fair labour practices, and the injunction that in appropriate cases the court must develop the common law to give effect to the nature, purport and objects of the Bill of Rights?  There is ample jurisprudence in this Court that not everything that is old is bad.  But, while viewing the outcome of cases decided in a different time and under different circumstances and condemning them as unfair, may be facile when done with the benefit of hindsight and dramatic changes in society, it nonetheless seems to me that the outcome of these two cases does not measure up to our modern notions of fairness in the context of employment.

[208]     Why should an employee, who acts on impulse and resigns in a fit of pique, be precluded, when tempers have cooled and common sense prevails, from withdrawing a notice of resignation on which the employer has not acted?  Why should a notice of resignation that the employer refuses to recognise bind the employee, so that the employer that rejected it may thereafter rely upon it?

That is what occurred in this case.  Mr Makhotla’s superior discussed his resignation with the human resources department and the vice-president of the company, and said they refused to accept it.  Toyota insisted on continuing with disciplinary proceedings that had been rendered academic, if in truth they accepted that Mr Makhotla was going to leave at the end of the month.  That having been their attitude, it hardly lies with them, at this late stage, to say, as a defence to a claim that he was unfairly dismissed, that it does not matter because he had already decided to leave.  And of course if that were the case any award to him would be minimal.  Zondo J describes this as speculation.  But, if that characterisation is correct, that is because this was not Toyota’s case and these issues were not explored on the facts at any stage of the proceedings.  They were raised for the first time in this Court.

[209]    We have not received argument on these interesting and difficult points.  Should the old view be retained as still applicable to our day and age?  My colleague obviously thinks it should.  I am less certain.  Should it be altered, and, if so, how?  I do not suggest (as did the Labour Court in Sihlali) that a corollary of allowing an employee to withdraw their resignation would be that the employer, by refusing to accept it, could force the employee to remain in their employment.

  • One possibility would be to require the acceptance of a resignation by the employer before it became binding on the employee.
  • Another would be to construe a notice of resignation as precatory in effect and capable of being withdrawn up to the point where the employer has acted on it to its prejudice.
  • A third, consonant with the constitutional right to fair labour practices, would be to say that an employer may not rely upon a resignation that has been withdrawn, if it would in all the circumstances be unfair for it to do so.

Conceivably there are other possibilities.  It is unnecessary and impossible to determine this issue at this stage in this case.  The question must be left open to be dealt with on another day and in another case where it more appropriately arises, preferably after careful consideration by the Labour Court and the Labour Appeal Court.  In this case, with the additional remarks expressed above, I concur in the main judgment, which addresses all the issues that properly arise for determination here. “