Labour and Employment Law / Employment Law Articles


Posted 16 January 2018

Siyabonga Tembe

In this case an employee of Standard Bank resigned with immediate effect when she was suspended and charged with misconduct. The Employer accepted the resignation, however on condition that she serves out her 30 day notice period. The Employee agreed to serve out the notice period and attended her disciplinary hearing during this time. The employee was ultimately found not guilty of the charges, reinstated with immediate effect and her suspension was lifted a day before her notice period was set to expire.

The employee then immediately retracted her resignation. The employer informed her that it did not accept her withdrawal of resignation and that her last day would be the 5th October 2016. The employee thereafter referred an unfair dismissal dispute to the CCMA. The only matter to be determined at Arbitration was whether or not the employee was dismissed?

In making its ruling that the employee was not dismissed and in fact had resigned , the commissioner relied on the case of African National Congress v Municipal Manager, George Local Municipality and others [2010] 3 BLLR 221 (SCA), wherein the Supreme Court of Appeal confirmed that resignation is a unilateral act which terminates the employment relationship and that it does not need to be accepted by the intended recipient to be effected.

Relying on the ruling in Lottering and others v Stellenbosch Municipality (2010) 31 ILJ 2923 (LC) [also reported at [2010] 12 BLLR 1306 (LC,) the arbitrator went on to state that a resignation cannot have any effect unless the employer consents to such withdrawal.

Having given regard to the prevailing jurisprudence on resignations, and the facts of this matter, the arbitrator ruled that the employee had resigned from Standard Bank and thus in the absence of acceptance of the withdrawal, the employee was not unfairly dismissed. Accordingly her claim did not succeed.

Employees are thus warned about the lasting effects of a resignation. If you have second thoughts and want to return to your employer, you will need their consent to reinstate the employment relationship.