Resignation is a unilateral act terminating the employment relationship.


Employees regularly resign from their employment with employers.  Although the ideal within any workforce would be that this process runs its course without any technicalities and/or difficulties, we do urge our members to keep the following points in mind which have come forth from legislation, the CCMA Practises and Procedures as well as relevant case law when dealing with resignations.


  • Many times, an employment relationship can end on a very emotional basis.


Therefore, be very careful when accepting verbal resignations from employees.


Note that Section 38(4) of the Basic Conditions of Employment Act states that:


  1. Notice of termination of a contract of employment must be given in writing, except where it is given by an illiterate employee;


The Courts have however, where special circumstances have been present, accepted the conduct of an employee to constitute a resignation.  However, the test that will be relied upon would be whether a reasonable person would have come to the conclusion that based on the employees conduct he no longer intended to fulfil his part of the contract.


  • Employees regularly decide a period after their resignation that they want to withdraw the resignation. Due to operational requirements employers would have already made arrangements to replace that employee and/or restructure their workplace.


Note that it has been held that the withdrawal of a resignation cannot have any effect unless the employer consents to such a withdrawal.


However, as with anything in law, there are always exceptions.  When a resignation is done in the heat of the moment and is retracted soon thereafter, much consideration would need to be given to the acceptance of the said retraction.  Failure to accept could lead to a dismissal.


  • A resignation is not dependent on the acceptance of an employer.


A resignation must be of immediate effect or from a specific date, and being a unilateral act, it does not need to be accepted by the intended recipient to be valid.  The resignation must however be unequivocally communicated to the other party.


The Court has gone further by stating that once an employee’s resignation has taken effect an employer may not discipline that employee.


In Kalipa Mtati vs KPMG Services (Pty) Ltd (J2277/16) ZALCJHB 403 an employee tendered her resignation with an applicable notice period and thereafter resigned with immediate effect.  The employer wished to continue with disciplinary action after the second resignation.  The employee sought an interdict against her hearing and the Labour Court found that:


  • An employee who resigns on notice can resign with immediate effect during the notice period;
  • That the employer had no power to discipline the employee after the second resignation;
  • The hearing was declared null and void; and
  • The employer was ordered to pay the employee’s costs.


Advocate Jonathan Goldberg recently commented during a Global Business Solutions seminar on the above in the following way:


“Why do employers insist on continuing with disciplinary action where an employee has resigned?  The risk is nullified, and time is saved when an employee chooses to resign.”


  • If the intention to resign is communicated it could already constitute an unambiguous resignation.


A specific case study would refer to an employee indicating in electronic correspondence his intention to resign where it was held that there was no further need to formally resign.


Cases where a resignation had been sent via sms have also been seen as unambiguous resignations


  • Note that there is distinguishable difference between early retirement and a resignation.


A resignation is a unilateral act by an employee, whereas retirement requires the assistance of the employer.


As you will note from the above, a resignation of an employee will not in all instances be as clear cut as one would expect.


We would thus advise that if any queries exist upon the receipt of an employee’s resignation, you contact your nearest Consolidated Employers Organisation offices for further advice and/or assistance.



Article by: Jaundré Kruger

CEO Regional Manager – Bloemfontein