LWO Employers organisation

Can an employee withdraw a resignation?

Employers face many challenges in the workplace.

Jul 1, 2022 | Articles, Business owners tips and advice

When an employee decides to resign, the employee voluntarily terminates the employment contract and relationship. The employee’s decision to resign is a unilateral act and there is no obligation on the employer to formally accept the resignation for it to be effective. The employer cannot refuse or deny the employee’s resignation but can hold the employee accountable for the notice period.
The length of the notice period will depend on what labour legislation prescribes for the specific business industry, but the Basic Conditions of Employment Act (Act 75 of 1997) requires:
  • one week’s notice if the employee was employed for six months or less;
  • two weeks’ notice if the employee was employed for more than six months but less than 12 months;
  • four weeks’ notice if the employee was employed for more than 12 months.
Section 37(4)(a) of the Basic Conditions of Employment Act stipulates that a resignation must be in writing unless an employee is illiterate. The law of property indicates that under certain circumstances a verbal resignation by an employee may be valid, provided that the employer can clearly demonstrate that the employee’s conduct clearly and unequivocally indicates an intention to terminate employment. In practice, however, this can cause problems if an employee resigns verbally because it is often difficult to prove that an employee has resigned. In such cases, it is important for the employer to document the employee’s conduct in writing and formally inform the employee that the resignation is accepted as voluntary.
UPCOMING LABOUR INSPECTION?
LET LWO ASSIST YOU!
Request a call back

The resignation

An employee can terminate the employment relationship for various reasons, including a new job opportunity, job dissatisfaction, avoiding the scrutiny of a disciplinary hearing, or an emotional decision in the heat of the moment. It is important to meet with the employee and discuss the reasons for the resignation and any underlying problems or conditions. If the employer suspects the resignation or its circumstances to be suspicious, allow a cooling-off period to avoid a possible referral of constructive dismissal or even unfair labour practice.

Can the employee withdraw the resignation?

In short: No. The employee does not have the right to unilaterally withdraw his/her resignation The employee should rather approach the employer as soon as possible and discuss the possibility of withdrawing the resignation.

What are the employer’s options?

The employer now has a choice to either accept the withdrawal or not. Be sure to take into account any underlying problems or conditions regarding the resignation.

Firstly, the employer can hold the employee to the resignation and refuse to accept the request for withdrawal. The employer can still enforce the notice period.

Secondly, the employer can agree to accept the employee’s withdrawal of resignation. There is no need to implement a new employment contract as there was no break in the period of employment. The employment relationship will continue as before. Take note that the terms and conditions of employment cannot be unilaterally amended. Any changes should be negotiated between the parties and mutually agreed upon and reduced to writing and signed.

Contact the LWO at 086 110 1828 with any labour law queries – we are available 24/7. Members can also send an email to info@lwo.co.za for assistance and support.

Disclaimer: Take note that the information and material published is not legal advice but published for general information purposes. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained on this platform. For legal advice kindly consult one of our legal advisors about any specific legal problem or matter.

IS YOUR BUSINESS LABOUR-COMPLIANT?

FIND OUT NOW.

Stay ahead with our comprehensive compliance questionnaire. We’ll help pinpoint any gaps, ensuring you operate within legal guidelines.
Complete the questionnaire