by Nicolene Schoeman-Louw
In a recent labour court judgement, the legal nature of resignation was considered. It was also considered whether, and if so - how it could be revoked. We are currently in a great resignation globally, for reasons including but not limited to employees seeking to access provident fund benefits. Employees want to start their businesses. Short working time was never adjusted, leading to searching for greener pastures, regardless of the chances that you could face several resignations this year. You must avoid ending up in court over it.
In Mohlwaadibona vs DS JS Moroka Municipality Case no: J718/21, the facts were:
In February 2019, Moroka employed Monareng as a Deputy Financial Officer. On 1 April 2021, Monareng tendered his resignation with immediate effect due to ill health. On 15 April 2021, Monareng sought to withdraw his resignation. He awaited the acceptance of his withdrawal for him to resume his duties on 19 April 2021. On 15 April 2021, Mhlanga responded to Monareng and informed him that his withdrawal was not accepted and that he should not present himself on 19 April 2021. On Monareng's version, he only received the response dated 15 April 2021 on 23 April 2021 after he had reported for duty on 19 April 2021 without any objection from Mhlanga. On 25 April 2021, the usual payday at Moroka, Monareng received his salary. Monareng opted to take legal advice after receiving the letter of response on 23 April 2021.
The resignation of Monareng did not happen in the heat of a moment. He provided reasons why he was resigning. It was due to ill health. He had a subjective intention to quit, and his conduct of continuing to not report for duty from 1 April 2021 to 18 April 2021 objectively confirms his personal choice to leave.
Conclusion
No formal action by the Employer was required to make a resignation effective.
Once resignation has taken its legal effect, consent to withdraw means re-employment or rehire. Re-employment and or rehiring requires compliance with specific statutory requirements in the local government context.
The only way to prevent the legal effect is if the resignation was withdrawn by consent.
Therefore, it is essential to be very cautious when any attempts to withdraw a resignation are made. Ensure that clear communication and written record records your intention.
Nicolene Schoeman-Louw founded SchoemanLaw Inc in 2007 in South Africa aged 24, and is now the Managing Director of the firm. She is an admitted Attorney of the High Court of South Africa, Conveyancer, Notary Public and Mediator; with a passion for entrepreneurs and helping them reach their most ambitious goals. She obtained her LLB degree cum laude and successfully completed her LLM degree (dissertation) in commercial law and B-BBEE, both at the University of the Free State. In addition, she obtained her postgraduate diploma in financial planning (CFP) at the University of Stellenbosch. She regularly contributes to various publications and shares her knowledge regularly on various radio stations. Nicolene has enjoyed the confidence of many successful entrepreneurs over the years and continues to do so. As a trusted advisor she has actively contributed to the successes of many businesses, helped and continues to help many entrepreneurs build lasting legacies.
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