adminDavis Sibanda Labour Matters
MANY employees have verbally or resigned in writing when upset with the employer only to try and withdraw the resignation once they have cooled down, at times they succeed and at times some employers reject the withdrawal of the resignation.The law on resignation is very clear. A resignation is effective from the moment it is effectively communicated to the employer. If the employer refuses to accept the retraction of the resignation, then that is the end of the matter. There is no relief for the employee who resigns and later tries to retract the resignation if the employer objects.
Workers need to avoid getting upset at work to the extent of resigning only to cool down later and withdraw the resignation. Resignation can be effectively communicated verbally or in writing. Where one verbally resigns and it is witnessed, the resignation is complete. What can be disputed is whether the verbal statement made was resignation or threat to resign.
Many employees who verbally resign in anger later deny they resigned and argue they only threatened to do so or they said they might resign. Where there are witnesses it might not be easy to prove one did not resign. Further, the courts will look into the conduct of the employee at the material time, for example if one surrenders keys to the company car, surrenders office keys, fills clearance forms and gets it approved or one storms out of a meeting and goes home before knocking off time by implication on balance of probability the court might conclude there was resignation. Employees therefore have to desist from conduct that could be viewed as communicating resignation.
There are, however, cases where employees have resigned under duress. Most such cases are acts of constructive dismissal. This is where the employer makes working conditions so unbearable that any reasonable person cannot put up with such conditions and then they are forced to resign. Where the employee can prove constructive dismissal, even if the employee resigned and the employer accepted the resignation, the courts will find the resignation not to be valid.
There are workers who have resigned from decent jobs and a few days into the new job they realise that the job is not as good as the previous job and quickly try to withdraw resignation. It will be too late and can only be reinstated at the discretion of the employer.
There are also cases where some workers are misled into believing they have committed a serious misconduct that could land them in jail or ruins chances of future employment and as a result, they resign only to realise later that they have been misled and demand to be reinstated. These are cases that end up in court where the validity of the resignation would have to be determined by court and the decision can go either way. This means that employers should avoid threatening workers with dismissal if they do not resign as validity of such resignations can be challenged in court.
In conclusion, employees should take the resignation matter seriously and think through before resigning as there is no room to change one’s mind later. Employers on their part have to ensure that they do not push workers to resign as it can easily be problematic when workers challenge the validity of resignation.
Davies Ndumiso Sibanda can be contacted on: e-mail [email protected]. Cellphone: 0772 375 235.
Online Reporter