In the case of MOHLWAADIBONA V DR JS MOROKA MUNICIPALITY (J718/21) [2022] ZALCJHB 91 (18 MARCH 2022), the employer, which is a municipality, was placed under administration.
Following this, due to ill health, the employee submitted his resignation immediately. He addressed the resignation letter to the acting Municipal Manager at the time.
After sending the resignation letter, the employee changed his mind and wrote another letter to the employer, withdrawing the resignation. He claimed that his health had improved. In response, the employer informed the employee that the withdrawal was not accepted and instructed him not to report to work on 19 April 2021.
He did not receive the employer’s response and returned to work on 19 April 2021. He stated that he received the employer’s response on 23 April 2021. His employer did not object to his return, and he received his salary for April.
Later, another acting Municipal Manager was appointed. Both parties agreed that the employee officially resigned on 1 April 2021. Resignation is a voluntary action that does not require any further action from the employer. Once a resignation is communicated to the employer, it takes effect and cannot be withdrawn unless the employer agrees.
When he was informed that his withdrawal would not be accepted, the employee sought urgent relief from the Labour Court (LC).
The LC determined that even if the employee had only become aware of the employer’s response on 23 April 2021, it was established that the Municipal Manager did not consent to the withdrawal.
The employee argued that he had implied consent because there was no objection upon his return. The fact that the Municipal Manager did not object did not indicate consent.
The LC stated that once resignation has legally taken effect, consent to withdraw implies re-employment. If both the employee and the employer agree to continue the employment relationship, it would be based on a new offer and acceptance of employment. Re-employment or rehiring in the context of local government requires compliance with specific statutory requirements.
Additionally, if a mutually agreed retraction of resignation is considered re-employment, the representative acting on behalf of the employer must have the authority to offer re-employment.
According to the Municipal Systems Act and Municipal Financial Management Act, the acting Municipal Manager did not have the authority to incur expenses associated with new hires on behalf of the municipality. Therefore, the Court concluded that the relief sought by the employee to be reinstated could not be granted.
In summary, a resignation is a unilateral act with consequences. Failing to work the notice period stated in the contract can result in a damages claim. An employer may refuse to accept a resignation that is not compliant with notice requirements but cannot refuse one that follows the contract or legal regulations. If both parties agree to continue the employment relationship, it will be based on a new offer and acceptance of employment.
Jonathan Goldberg
