Barney Jordaan
Resignation is a thorny part of the employment relationship that often causes unnecessary strain.
Two common questions about resignation are if an employee may withdraw a notice of termination with the employer being forced to accept the withdrawal; and if there is a difference between desertion and resignation without proper notice.
Resignation, or termination on notice, is known in law as a “unilateral act”.
This means it does not need the co-operation of the person at whom it is directed to be effective.
This is different from the conclusion of a contract, for instance, which requires a “meeting of minds” to be valid.
Being a unilateral act means that a resignation is valid once it has been given, provided only that the employee was in a fit state of mind at the time of resignation.
It also means that the employee is not able to withdraw the resignation at will.
He or she needs the employer’s consent to withdraw the resignation.
The employer is under no obligation to agree to the withdrawal.
The contract simply comes to an end at the expiry of the notice period.
If the employee resigns without giving proper notice, it is still a unilateral act that signifies that the employment relationship will come to an end.
In this case, the employee is also not able to withdraw the resignation.
However, if the employee resigns in a huff, the employer would be well advised not to simply say “good riddance”.
Instead it is advisable for the employer to meet with the employee and try to understand the reasons behind the resignation.
It may be that the employee’s situation at work has become intolerable and, if the employer does not take reasonable steps to remedy the situation, it may open itself up to a complaint of constructive dismissal.
DESERTION
Desertion means that the employee leaves his or her workplace without permission with the intention of never returning.
It therefore goes beyond being absent without leave or, as it is better known, “AWOL”.
The intention to return must be made clear through the employee’s words or conduct.
For instance, if an employee leaves without permission and is then found working for someone else, the employer may conclude that the intention not to return is evident from the employee’s conduct.
An employee who “resigns” from his or her employment without proper notice is, strictly speaking, deserting.
In theory, the employee could be “charged” with desertion, but this will in most cases be a waste of time.
The employer can simply rely on the fact that the employee has repudiated his or her contract by leaving without tendering a proper resignation.
This is a form of misconduct, and the employer could dismiss the employee for this reason.
However, this assumes that the employer has sufficient evidence that the employee has indeed resigned and failed to give proper notice.
A more pragmatic option may be to wait until the contractually required notice period has run out, upon which the employment relationship will come to an end.
- Go to www.labourwise.co.za for more labour advice by Barney Jordaan. He is a co-founder and director of Maserumule Consulting.