Monareng Jeffery Mohlwaadibona // Dr JS Moroka Municipality  LC
While resignation is an employee’s unilateral act, the withdrawal thereof is not. Resignation withdrawals must (i) be within the currency of the notice period and (ii) accepted by an employer before it may be considered valid and enforceable. In the abovementioned case, the Labour Court (“LC”) dealt with an instance where an employee attempted to claim his resignation withdrawal had been granted and that his employment should continue when this was not the case.
During February 2019 the Applicant was employed by the Municipality as the Deputy Financial Officer. During January 2020 the Municipality was placed under administration and the Applicant reported to the acting administrator, Mr. Mhlanga, who was also given the powers of a manager. On 1 April 2022 the Applicant submitted a resignation letter, with immediate effect, to Mhlanga. On 15 April 2022 the Applicant withdrew his resignation waiting for it to be accepted and wishing to come back to work on 19 April 2022. On 15 April 2022 Mhlanga informed the Applicant that his resignation withdrawal was not accepted and that he should not return to work on 19 April 2022. The Applicant contends that he only received this communication on 23 April 2022 after he had come back to work on 19 April 2019. Applicant also said that Mhlanga did not object when he came back to work on 19 April 2022. On 25 April 2022 the Applicant received his salary/final payments.
On 6 May 2022 the Municipality employed an acting municipal manager, Mr. Monkoe. On 10 May 2022, Monkoe advised the Applicant that his withdrawal had been accepted. The Applicant was not paid in full for May 2022. The Applicant then approached the LC for an interim order declaring, inter alia, that his employment continued due to his withdrawal being accepted.
As part of this application, the Applicant argued that a resignation only takes legal effect if communicated to only the municipal manager of which Mhlanga was the acting manager at the time. The LC rejected this argument and stated that a resignation may be submitted to anyone superior to the employee. It was common cause that Mhlanga did not agree to the withdrawal but the Applicant contended that he only knew of the refusal on 23 April 2022. The fact that the Applicant received his salary on 25 April 2022 does not indicate that the withdrawal was accepted. However, it was alleged that the confusion and actual acceptance of the withdrawal was due to Monkoe acceptance thereof on 10 May 2022.
The LC was of the view that where an employee withdraws a resignation, all it means is that such employee is seeking re-employment; and that the Applicant’s employment ended on the day he resigned with immediate effect, i.e. 1 April 2022. When the Applicant attempted to withdraw the resignation it was tantamount to an application for re-employment. The LC commented that where a withdrawal is made during the currency of the notice period, it may be consented to by the employer.
The LC finally found that when Monkoe accepted the Applicant’s withdrawal it was actually an instance of re-employment which effectively meant the re-hiring of the Applicant on 10 May 2022. The issue was then whether or not Monkoe, through his actions, complied with the correct municipal procedures for the re-hiring of the Applicant. The answer is no and the re-hiring of the Applicant was not enforceable.
In summary –
1. Resignation is a unilateral act and an employer is obliged to accept an employee’s resignation;
2. Where an employee withdraws the resignation during the currency of the notice period, such withdrawal may be accepted by the employer. If not accepted, the resignation remains in effect; and
3. Where any employee withdraws the resignation outside of the notice period, it is not a genuine withdrawal but rather an application for re-employment.
Candace Bachmann – Associate Attorney
Justine Del Monte & Associates Incorporated