It often happens, that employees, after having tendered their resignation, will refer a dismissal dispute at the CCMA and claim that they were in fact dismissed by the employer. At first glance, these disputes appear to be unproblematic as the employer intends to argue that they had no part to play in the termination of the employment relationship and, therefore, cannot be held liable for compensation. However, the opposite is often the case. Employers may be surprised at the outcomes of such disputes. One such case is the “heat of the moment” resignation.
A resignation is a unilateral act by the employee, unequivocally communicating their intention not to continue with the employment contract, which does not need to be accepted by the intended recipient to be effected (African National Congress v Municipal manager, George local municipality and others).
When a dismissal dispute is referred to the CCMA, and it involves an alleged resignation, the CCMA commissioner will consider the circumstances under which that resignation was tendered. In some cases, the CCMA will determine that the resignation will amount to a claim for constructive dismissal as a result of alleged intolerable working circumstances. In other instances, it may become evident that the employee was placed under duress by the employer to resign. Under these circumstances, the resignation may be invalid.
In CEPPWAWU and another v Glass and Aluminium, the 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. After a heated debate between the employer and the employee, wherein the employee decided to resign, the court had to establish the intention of the employee at the time the resignation was communicated to the employer. The court went on further to state that if their resignation was made in the heat of the moment and withdrawn soon thereafter, it will resultantly be ineffective.
In The Personal Employment Contract, 2003, Freeland, at 419, states that the genuineness of the employee’s volition to end his or her employment relationship must be scrutinised to establish whether, on the one hand, the employee’s action is a result of pressure from the employer or, on the other hand, the employer has been over-eager to treat an impulsive or hesitant decision on the employee’s part as a final firm one.
In the same way, the CCMA will enquire into the circumstances around the resignation. In certain circumstances, the courts have accepted that even when the employee has communicated a clear intention to resign, acceptance of that resignation constituted dismissal if the employee subsequently changes his mind or asked to withdraw his resignation.
Should you find yourself in a position where an employee has tendered his resignation in the circumstances described above, you should obtain sound legal advice before accepting such a resignation as final.
Article by: Stephen Kirsten
Provincial Manager – Cape Town