It is common for employees to resign from their positions, for whatever reason, and seek opportunities elsewhere. In some cases, albeit rarely, employees may reconsider and seek to withdraw their resignation. Whether they are at liberty to do so and if their resignation is binding are questions which the affected employer will naturally have in these circumstances. Consequently, the legal consequences surrounding  and the employer’s consent thereto are not general knowledge.

The 2022 case of Monareng v DR J S The Respondent Municipality [2022] (“Monareng”) considered the circumstances under which a person can withdraw their resignation and the legal consequences that follow. Specifically, the Labour Court questioned, inter alia, whether an employer could consent to the withdrawal of a written resignation, provided after the notice period had expired.

The Applicant in Monareng was employed by the Respondent as a Deputy Financial officer. In April 2021 he submitted notice of his resignation for reasons of poor health. The resignation letter was tendered to a Mr Mhlanga, the Respondent’s municipal manger (“Mhlanga”). Fourteen days later the Applicant attempted to withdraw his resignation which was followed by a formal response from Mhlanga confirming that the withdrawal was not accepted. Approximately one month later, after the resignation period had expired, this initial position was reversed, and the Applicant was informed by a newly appointed municipal manager, allegedly incorrectly, that his withdrawal had been recognized and accepted. The Respondent later removed the Applicant from its payroll, who subsequently brought the matter before the Labour Court.

Counsel for the Applicant first argued, inter alia, that the Applicant did not communicate his resignation to the correct authority, thus rendering it invalid. However, Moshoana, J disagreed stating that communication to ‘anyone superior to an employee’ would be sufficient because such a person is a representative of the employer. He found that the Applicant had lawfully resigned.

The Labour Court made several findings. In defining resignation as a voluntary and ‘unilateral act that ends the employment relationship’, it confirmed that resignation is effective once communicated to an employer. The learned Judge further confirmed that a resignation can only be withdrawn if the employer consents to the withdrawal. Therefore, withdrawal of resignation does not operate in the same way as registration itself and an employee cannot revive an employment contract of his own volition.

Importantly, the employee’s withdrawal must be delivered before the end of the notice period for resignation. If not, the employer cannot consent thereto. Consequently, the court held that because the Applicant’s withdrawal was given outside of the notice period it could not be validly consented to and his resignation was final. A new employment contract should have been offered to the Applicant instead.

The Monareng case provides clarity that resigning from employment is a unilateral act and can only be withdrawn with the consent of the employer, and even then, only in the applicable notice period. Employment contracts commonly require a notice period between two weeks and a month before resignation is affected. Employees should take care to familiarise themselves with the applicable notice period so that, if they wish to withdraw their resignation, they do so timeously.

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