Close

October 8, 2018

Is an Employer Bound to Accept the Retraction of An Employee’s Resignation?

resignation

A contract of employment entered into between an employer and an employee comes into existence by the agreement of both parties.

When an employee resigns their contract they do so unilaterally.

There is no need for an employer to accept the resignation inasmuch as the employee has complied with the contractual notice period has been satisfied.

If an employee wishes to breach the notice period and to leave with immediate effect, then the employer has the right to decide whether he/she wishes to agree that the notice/termination clause in the contract of employment may be breached or waived.

I have, in a previous blog post, already dealt with what are the responsibilities of the employer where an employee elects to resign pending a disciplinary hearing.

In this respect I quoted the Mtati v KPMG case. I will, so as not to repeat this blog here, post this blog as the next post.

In SACTWU v Celrose Ltd [1997] 7 BLLR 944 (CCMA), an employee with 20 years service resigned after the employer had re-structured and moved to new premises. The employee “disagreed with the changes.” By the time the employee decided to withdraw his resignation, it was too late – the employer had already engaged a replacement. The employer had offered the resigning employee a position as a casual employee, but he refused. In his letter of resignation, the employee gave the reason for resigning as follows” “The reason for this is I am not happy working in the new Department. I disagree with the changes.”

Given, what was stated above in regard to how the contract of employment comes into existence, the employee therefore has no right to retract the resignation given that the ending of the employment relationship has been communicated by the employee unilaterally.

In other words, the employee has no legal right which entitles him to unilaterally retract his/her resignation and neither is there any legal obligation on the employer to be forced to accept such a retraction.

It is wise, however, where the employee resigns in very emotional situations or where he/she retracts his/her resignation a very short time, within 24-48 hours as an example, after the initial resignation was served by him/her, for the employer to favourably consider the retraction on the basis that the employer would not be able to argue that it had already made alternate resourcing plans to deal with the effect of the employee’s resignation.

In summary, there is no legal right for an employee to retract their resignation or for an employer to accept such a retraction.

In instances where the employee resigns under particularly emotional situations or retracts within a short space of time following the original resignation, it may make logical sense and be prudent for the employer to accept a retraction under such circumstances.

Leave a Reply

Your email address will not be published. Required fields are marked *