It cannot be disputed that both a resignation and a mutual separation agreement (MSA) end the employment relationship. The question is how these differs in law.
Previous Case Law on Dismissals
The Labour Court in Mtati v KPMG Services (Pty) Ltd (J2277/16) [2016] ZALCJHB 403; [2017] 3 BLLR 315 (LC); (2017) 38 ILJ 1362 (LC) (18 October 2016) at paragraph [15] provided a summary, with reference to case law, as it was then:
15.1 Notice of termination must be unequivocal – Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 4 SA 809 (SCA) at 830E.
15.2 Once communicated, a notice of termination cannot be withdrawn unless agreed – Rustenberg Town Council v Minister of Labour 1942 TPD 220 and Du Toit v Sasko (Pty) Ltd (1999) 20 ILJ 1253 (LC).
15.4 Subject to the waiver of the notice period and the possible summary termination of the contract by the employer during the period of notice, the contract does not terminate on the date the notice is given but when the notice period expires – SALSTAFF obo Bezuidenhout v Metrorail [2001] 9 BALR 926 (AMSA) at para [6].
Resignation
The normal interpretation of “resignation” is that it is a unilateral, willful act by an employee to end the employment relationship. Being a unilateral act, it differs from commercial contracts were there is an offer and an acceptance in respect whereof the requirement is that the minds of parties must meet (ad idem). A resignation need not be accepted by the employer (other party) to be valid and of force.
The requirements for a resignation are limited to:
- An action initiated by the employee;
- A voluntarily action by the employee;
- Notice to the employer to end the employment contract or leave his/her position; and
- Notice becoming known to the employer.
It is preferred that resignations must be in writing; however, a verbal resignation still has the effect of ending the employment relationship.
The LC (JHB) in Monareng v Dr JS Moroka Municipality (J718/21) [2022] ZALCJHB 66; [2022] 8 BLLR 756 (LC); (2022) 43 ILJ 1855 (LC) (18 March 2022) stated at paragraph [13]: “This is of course different to the question whether resignation is a unilateral act that ends an employment relationship once communicated to the other party to the relationship; namely the employer. To my mind, a plethora of authorities supports a view that resignation takes effect once communicated. This is so even if an employee is contractually obligated to serve a notice period and does not serve it.”
Does Resignation Stop Disciplinary Action
It is submitted that this has not been the subject of a judgement.
For the moment, the minority ruling in Toyota SA Motors (Pty) Ltd v CCMA and Others (CCT228/14) [2015] ZACC 40; (2016) 37 ILJ 313 (CC); [2016] 3 BLLR 217 (CC); 2016 (3) BCLR 374 (CC) (15 December 2015) is relevant. The majority in that case dismissed the application for leave to appeal which means that they never considered the merits of the application. It is the minority judgment of Zondo J that dealt with the merits of the application and held that:
“[142] Another context of resignation is the normal resignation. Where an employee resigns from the employ of his employer and does so voluntarily, the employer may not discipline that employee after the resignation has taken effect. That is because, once the resignation has taken effect, the employee is no longer an employee of that employer, and that employer does not have jurisdiction over the employee anymore. Indeed, even the CCMA or the relevant bargaining council would have no jurisdiction to entertain a referral of a “dismissal” dispute in such a case because there would be no dismissal as envisaged in section 186 of the LRA. Therefore, if an employee who has validly resigned later refers an alleged unfair dismissal dispute to arbitration under the LRA and it is found that the employee had validly resigned and had not been dismissed, reinstatement would be incompetent.”
The pertinent clause is “once the resignation takes effect”. Thus, where the resignation is with immediate effect, the employer loses the right to discipline the employee, also with immediate effect.
The Labour Court, at about the same time ruled in Mtati v KPMG Services (Pty) Ltd (J2277/16) [2016] ZALCJHB 403; [2017] 3 BLLR 315 (LC); (2017) 38 ILJ 1362 (LC) (18 October 2016) at paragraph [20] and [21]
[20] The basic principle, as I understand it, is that the fact that an employee has given notice to terminate the employment contract does not take away the power of the employer to discipline him or her whilst serving the notice period. In other words, if an employee is serving notice, he or she is still subject to the authority and the power of the employer in as far as the employment relationship is concerned. Similarly, all the obligations that arise from the contract are still binding the employer during the notice period and this includes the duty to pay the salary of the employee.
[21] If an employer takes disciplinary action against the employee and dismisses him or her before the end of the notice period the employment relationship would be terminated. In those circumstances the termination will not be due to the resignation of the employee but rather the dismissal for misconduct.
On the basis of the aforesaid, the Labour Court, in Mtati v KPMG Services (Pty) Ltd ruled at paragraph [23]
[23] There is no requirement in law that an employee who resigns on notice, which is then accepted by the employer, cannot resign with immediate effect during the notice period. In other words, an employee who issues notice of intention to resign is not barred from resigning (with immediate effect) thereafter before the expiry of the notice period. In other words, an employee in such a situation, need not seek the consent of the employer neither does he or she need to withdraw the initial resignation before doing so.
Withdrawal of Notice of Resignation
It may happen that an employee resigns in a moment of anger and later wish to withdraw the resignation. Once the employer was informed of the resignation, the employer is not obligated to grant a request for the withdrawal of the resignation. This is because notification and not acceptance trigger resignation.
The LC (JHB) in Monareng v Dr JS Moroka Municipality (J718/21) [2022] ZALCJHB 66; [2022] 8 BLLR 756 (LC); (2022) 43 ILJ 1855 (LC) (18 March 2022) stated at paragraph [12]: “In my view, where an employee withdraws a resignation, all it means is that such an employee is seeking to be rehired or re-employed.” And at paragraph [15] “It seems to me that the withdrawal must be made during the currency of the notice period for it to be consented to.”
At paragraph [21] the Court stated, “The resignation of Monareng did not happen in the heat of a moment. He provided reasons why he was resigning. It was due to ill health. He had a subjective intention to quit and his conduct of continuing to not report for duty from 1 April 2021 to 18 April 2021, objectively confirms his subjective intention to quit. Therefore, unless he can demonstrate “special circumstances” he cannot by law be allowed to approbate and reprobate at the same time. The doctrine of election is very much part of our law. He consciously elected to resign. He must be allowed to remain in that freely chosen path.”
Mutual / Voluntary Separation / Mutual Separation Agreement (MSA)
Mutual Separation Agreements are best described as an agreement between an employer and an employee in terms of which the employment relationship is ended by way of agreeing on the terms thereof. This agreement normally follows a negotiation process. In such an agreement rights may be waived, and rights may be obtained.
The High Court in MacKay v Bidcorp Food Africa (Pty) Ltd and Others (40557/17) [2018] ZAGPJHC 714 (28 June 2018) referred to such agreement at paragraph 27 – [27] The letter is consistent with the terms of his employment that he would not leave Patleys’ employ unless by agreement. It is also consistent with parties negotiating acceptable terms of mutual separation. Initiating a mutual separation must be seen in the context of the terms of his employment contract. It is not tantamount to resignation. Mackay stated that he had been open with all the parties about ensuring that he does not place his entitlement to the consideration in jeopardy. This would have been the case had he been dismissed for misconduct for example.
