The word ‘resignation” is commonly used to describe situations where employees no longer wish to continue with their employment. Generally speaking employees have the right to terminate their employment lawfully subject to giving the same period of notice as the employer or as required by law. In such instances the employment contract will terminate at the end of the notice period.
However, what happens when employees simply ‘resign’ without giving notice to terminate? If employees claim that such a ‘resignation’ was not voluntary but due to the employer’s intolerable behaviour then there are 2 possible ‘causes of legal action’ both based on ‘constructive dismissal’ against the employer: (a) one alleging a breach of the common law duty of ‘fair dealing’; and (b) a statutory claim under the Labour Relations Act section 186(1)(e).
Recently the Labour Court granted ‘absolution from the instance’ in the case of Mafika Sihlali v SABC Case number J 700/08 dated 14 January 2010 per Van Niekerk J. The applicant, a legal adviser to the SABC, sent an SMS to the CEO on 25 August 2007 stating that he ‘quit with immediate effect”. Some time thereafter he regretted his decision and instituted legal proceedings in the Labour Court in terms of section 77 of the Basic Conditions of Employment Act claiming his remuneration to the end of the purported fixed-term being 31 July 2009.
The SABC’s successful defence to this contractual claim was that the legal adviser’s ‘resignation’ was valid and not capable of being withdrawn or alternatively he had repudiated his employment contract and failed thereafter to tender of services.
The main issue was then whether the legal adviser’s voluntary termination was valid and if so whether it was capable of being revoked or withdrawn by him. After dealing with all the evidence in the trial Van Niekerk J clearly stated that a resignation is a unilateral termination of a contract of employment by an employee and went on to say in para [11] “… it is not necessary for the employer to accept any resignation that is tendered by an employee or to concur in it, nor is the employer party entitled to refuse to accept a resignation or decline to act on it”.
Van Niekerk J states in para [12]:
“This is not to say that a resignation need not be communicated to the employer party to be effective – indeed, it must, at least in the absence of a contrary stipulation (African National Congress v Municipal Manager, George & others 550/08) [2009] ZASCA 139 (17 November 2009) at para [11])”.
In this regard see the post under Comment on that case: “SCA: valid & effective withdrawal of unread letter of resignation”
In para [18] Van Niekerk J dealt with an argument concerning the lack of written notice of termination:
“In support of the first leg of his argument, Mr Hardie relied on s 37(4)(a) of the BCEA, which requires that notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee, and paragraph 9 of the personnel regulations, which similarly refer to notice of termination ‘in writing’. I am not convinced that where there is a resignation in the form of a clear and unequivocal intention by an employee not to continue with the employment contract, it is invalid only because it was not reduced to writing – it seems to me that this is a requirement that may be waived. But I need make no finding in this regard – a communication by sms is a communication in writing. Section 12 of the Electronic Communications and Transactions Act, 25 of 2002 provides:
“A requirement in law that a document or Information must be in writing is met if the document or Information is-
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference…”
Section 1 defines a ‘data message’ to mean ‘data generated, sent, received or stored by electronic means…’
(See also the recent decision by this court in Jafta v Ezemvelo KZN Wildlife [2008] 10 BLLR 954 (LC)). The applicant’s resignation by sms was therefore a resignation submitted in writing”.
The legal adviser also argued that the Labour Court was bound by a decision of Nicholson JA in CEPPWAWU & another v Glass and Aluminium 2000 cc [2002] 5 BLLR 399 (LAC) and the “principle established in that judgment to the effect that a resignation tendered by an employee requires acceptance by the employer party”.
Van Niekerk J pointed out that no authority was cited for that statement which has also been criticised. In any event Van Niekerk J held that the statement was not binding on him because he was dealing with a contractual claim and not a statutory claim under the LRA.
There is a potential problem. The common law seems to regard voluntary terminations, without proper notice, as unilateral unlawful acts which do not require the employer’s acceptance and bring about the immediate termination of the contract. But employment contracts are regarded as reciprocal agreements and the usual rule is that a repudiation by an employee would not end the contract but simply provide the employer with the right to cancel the contract based on the employee’s material breach of contract. Van Niekerk J states in para [11] “if a resignation to be valid only once it is accepted by an employer, the latter would in effect be entitled, by a simple stratagem of refusing to accept a tendered resignation, to require an employee to remain in employment against his or her will. This cannot be – it would reduce the employment relationship to a form of indentured labour”.
Surely the answer to that argument is that the employee must give the required period of notice and then there would not be any ‘indentured labour’.
This matter is far from simple in that in terms of the LRA a voluntary termination (‘resignation’) without proper notice is regarded as a repudiation of the contract and if the employer accepts it then it is the employer who is regarded as having ‘dismissed’ the employee for the purposes of the LRA section 186(1)(a). If the common law approach is adopted then there will not have been any “dismissal”.
In para [20] Van Niekerk J seems to suggest that there are 2 different approaches:
“The statements made in Glass and Aluminium and Uthingo to the effect that it is necessary for a resignation to be accepted by an employer are obiter. Glass and Aluminium concerned a statutory claim of unfair dismissal and the interpretation of s 186(1) of the LRA rather than a contractual claim such as the present; Uthingo was a review of an arbitration award in an unfair dismissal dispute, an element of which concerned the application of a notice clause in an employment contract and the definition of ‘dismissal’ in s 186. I see no reason to depart from the long line of authorities referred to in paragraph [11] above, all of which directly concern themselves, as does this case, with contractual disputes. The effect of the authorities is that a resignation is a unilateral act by an employee that does not require acceptance by the employer”.
It should also be mentioned that PAK Le Roux discussed Van Niekerk’s judgment in a recent article: “Resignations – an update: The final, unilateral act of an employee” (2010) 19/6 Contemporary Labour Law p 51.