WHEN HAS AN EMPLOYEE RESIGNED?

Sometimes it is fairly simple to determine whether an employee has resigned. Resignations often take the form of a written letter or email where the employee informs the employer of the resignation. However, in some instances, matters are less clear. Take for example the scenario where an employee storms off after a confrontation and then does not return to work the next day. When does conduct of an employee amount to a resignation?

The reason this question is important is because there are different legal consequences that follow from a resignation when compared to a dismissal. When most people think of “dismissal” they think of the scenario where the employer “fires” an employee. This is indeed one form of dismissal as is codified in section 186(1)(a) of the Labour Relations Act 66 of 1995. In general terms, it is indeed often the case that “dismissal” is some kind of conduct by the employer that terminates the employment relationship. The South African law imposes several strict conditions on an employer before it can dismiss an employee. Without going into too much detail on this aspect it is, in essence, necessary for there to be procedural and substantive fairness when an employer dismisses an employee. On the other hand, if an employee resigns, then an employer need not (generally speaking) worry about these issues. One obvious exception to this is when dealing with “constructive dismissal”, which essentially means that although the employee resigned, the resignation was because the employer made continued employment intolerable for the employee. Forgetting for the moment some of the exceptions such as constructive dismissal, it is accordingly apparent that there is a big difference between the responsibilities which attach to an employer when an employee resigns compared to when an employer dismisses the employee. It is therefore particularly important to understand when an employee’s conduct amounts to resignation.

There have been several matters where the court had to determine whether an employee resigned or not. For example, in Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC), an employee working for a fishing company alleged to have been dismissed by his employer in a meeting where he was told that the business was experiencing operational difficulties. The employer, however, contended that the employee had, during this meeting, indicated that he was in any event leaving his employment. The court held that the employee must show (on a balance of probabilities) whether there was some overt act by the employer that was the immediate cause of the termination of employment. The court distinguished between a dismissal such as this and a voluntary resignation, which is where the contract is terminated by the employee. In essence, the court found that what was required was a consideration of all the factual circumstances and to determine whether it can truly be said that the employee left of his or her own accord and volition. On the particular facts of the case, the court held that the employee failed to prove that he was dismissed.

In the matter between Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC) the employee informed his employer that (due to the employer’s conduct) the employment relationship was permanently damaged and the employee wanted to negotiate a termination of the contract. The employer, in essence, tried to argue that this conduct amounted to a rejection by the employee of the contract and hence it was actually the employee who had terminated the contract. The court held that at no stage did the employee, by either words or conduct, evince a clear and unambiguous intention not to go on with his contract of employment. Furthermore, the court found that the employee did not act in such a way as to lead a reasonable person to conclude that he did not intend to fulfil his part of the contract, nor did he say anything to lead to such a conclusion.

Another case of note was that of Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC). In this matter the employee (after allegations about his alleged misconduct surfaced in the media) sent an SMS to the group chief executive officer indicating that he “quit with immediate effect”. The employee attempted to argue that his SMS did not constitute a valid termination of the contract and that he had withdrawn his resignation before it was accepted. The court referred to Fijen and held that a resignation is established by a subjective intention to terminate the employment relationship, and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention. The court also held that it is not necessary for an employer to accept a resignation tendered by an employee and, in fact, an employer is not entitled to refuse to accept the resignation or to decline to act on it. The court did, however, indicate that a resignation must be communicated to the employer to be effective in the absence of a contrary stipulation. The court, on a consideration of the evidence, held that the employee did in fact resign.

One last case is mentioned since it serves as a good example of when there can be confusion as to whether there was a resignation or a dismissal. In this matter there was a highly acrimonious relationship between employer and employee which culminated in what appeared to be the employee resigning, although he returned to work the next day to get his job back. The court held that if the employee’s conduct did amount to a resignation, then it was in the heat of the moment and was not held to be effective.

In conclusion, whether an employee resigns voluntarily or is dismissed entails distinct legal consequences. Accordingly, an employer should be careful in presuming an intention if the employee has been unclear in whether or not he or she wants to proceed with the employment relationship.

 

Disclaimer: the information contained in this article is made available for general purposes only. It does not constitute legal advice. It is also subject to change depending on, amongst other things, legal developments. Accordingly, we do not accept responsibility for any loss or damage (whether direct, consequential or otherwise) which may arise from reliance on the information.