Our previous article, “So, are you staying or going?“, discussed the factors to consider when evaluating whether an employee resigns without confirming their intention in writing. The courts have held that the employee must prove a clear and unambiguous intention not to go on with the contract of employment by words or conduct that would lead a reasonable person to believe that the employee harboured such an intention.

A resignation is established by a subjective intention to terminate the employment relationship and words or conduct by the employee that objectively viewed, clearly and unambiguously evidence that intention. The courts generally look for unambiguous, unequivocal words that amount to a resignation. To resign, the employee had to “act in such a way as to lead a reasonable person to the conclusion that they did not intend to fulfil their part of the contract.”

The courts have considered a scenario where such an intention to resign was communicated to the employer, but the circumstances around the resignation rendered it invalid.

In CEPPWAWU and Another v Glass and Alumunium 2000 CC, the Labour Appeal Court held that a resignation “in the heat of the moment” does not terminate the employment contract if the employee has second thoughts soon thereafter.

The “heat of the moment” resignation occurs when the employee tenders a resignation during or as a result of some conflict. Although their intention to resign at that moment may be unequivocally communicated, the employee might not have considered the circumstances around the decision.

It is this issue which employers should consider with caution. The “resignation” by the employee may be of great benefit to the employer. As a result, the employer will accept the sudden resignation and refuse a subsequent withdrawal of the resignation. Having encountered this scenario on numerous occasions, there are often comments like, “we let the employee leave of their own volition and did not stand in the way of the employee”.

Unfortunately, when objectively viewed by a third party, the intention to terminate the contract may be lacking, notwithstanding the employee’s utterances. The employee may not have had an opportunity to consider the consequences of their actions and will only reflect on the decision a couple of days after it has been made.

We advise employers faced with such a scenario to consider the facts from the employee’s perspective and whether it can be said that the employee had resigned at the time or whether the resignation was due to a moment of distress, anger, or frustration.

The circumstances of the resignation are not sufficient to render it invalid. Employees must communicate a change of heart with their employer within a reasonable period. The amount of time considered “reasonable” has not been defined by the law, but the courts have said that it must be “soon thereafter”. It is suggested that the employee should withdraw his resignation within a few days.

The above withdrawal does not apply to all resignations, whether in writing or not, but only those which occur because of an altercation and are sudden and unexpected.

It would be advisable that if an employer is faced with such a resignation, there is merit in allowing the employee a short “cooling-off” period and checking in with the employee as to whether the resignation still stands.

Article By: Stephen Kirsten
Provincial Manager – CEO Cape Town