A contract of employment can end at the employer’s instance, in the form of a dismissal, or by the employee in the form of a resignation. Although a written resignation is preferred, sometimes the employee refuses to confirm their resignation in writing. Under these circumstances, determining whether the employee has resigned can create confusion for the employer.

A written resignation is always preferable. The document should clearly express the employee’s intention to terminate the employment contract on a specific date. In most circumstances, employees will express this intention in a written document. The “resignation letter” should benefit both parties in that it communicates the employee’s intention not to continue with the employment relationship. Where the employee either refuses or fails to reduce their intention to writing – could leave the employer uncertain as to whether the employee has, in fact, resigned.

Our law does not require a resignation to be in writing for it to be valid.

In Council for Scientific & Industrial Research v Fijen, the court said: “A resignation is a unilateral termination of a contract of employment by the employee. The courts have held that the employee must give 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”.

The court further stated: “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 he did not intend to fulfil his part of the contract’”.

Mark Freedland, in “The Personal Employment Contract”, wrote:
“The requirement of a clear and unambiguous intention to terminate the contract may often be more easily stated than applied. If a worker utters words seeming to indicate an intention to leave employment, the utterance may be unclear, the product of uncertainty, or a manifestation of anger rather than an expression of a definite intention to terminate the employment relationship. When it is claimed that an employee has decided to terminate the employment of their own volition, it may be necessary to scrutinise the genuineness of that volition to determine, for example, whether the employee’s action is the result of an unacceptable degree of pressure from the employer, or whether the employer has been over-eager to treat an impulsive decision as a settled one.”

Where the resignation is not in writing, the employer should act with a degree of caution and evaluate all the circumstances surrounding the “intention to resign”. As stated by the courts above, the circumstances must be evaluated objectively and without any bias or prejudice that may exist because of a strained relationship between the parties. Employers are often over-hasty to conclude that an employee’s actions amount to a resignation where it suits the employer. A measure of caution should therefore be exercised.

Article By: Stephen Kirsten
Provincial Manager – CEO Cape Town