Can an employee resign and then a week or so later withdraw the resignation?

Sep 26, 2018


As a general principle an employee cannot retract his or her resignation without the employer’s consent.

If an employee can show that the employer failed to accept his resignation he can withdraw his resignation at any time before acceptance.
A contract of employment between the employee and the employer can be terminated by agreement between the parties (the employee resigns and the employer accepts the resignation). If the employee changes his mind it is too late unless the employer agrees. In other words, the employee has no legal right which entitles him to unilaterally withdraw his resignation.
In Nashwa v Unisel Gold Mine [1995] 9 BLLR 132 (IC), two conflicting versions of the events leading up to the applicant’s (the employee) dismissal were put to the court. The applicant alleged that he had been dismissed, the respondent (the employer) that he had voluntarily resigned. In the court’s view, when an employee voluntarily tendered his resignation in a moment of weakness or anger and shortly thereafter approached his employer to retract his resignation, a refusal to accept the retraction could in appropriate circumstances amount to an unfair labour practice. However, the application was dismissed as the court accepted the respondent’s version.
When an employee resigns, it is advisable that the employer insists that such resignation must be in writing. Conversely, the employer must confirm its acceptance of the employee’s resignation in writing. When a resignation is in writing and the employer accepts the resignation in writing, there is no misunderstanding and/or misinterpretation of the resignation and the acceptance thereof. If both the resignation and acceptance are done verbally, it may cause the aforesaid. In any circumstance, the employer has the right to waive the acceptance of the resignation if it so wishes, or it may accept the withdrawal of the resignation for good reason, based on operational and business requirements.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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