In April 2021, the Labour Court was presented with a case where an employee had resigned their employment in writing, and then endeavoured to withdraw the resignation. The employer in question argued that the resignation had been accepted and declined to entertain the employee’s attempt to retract it. In this blog, we discuss the legal position to answer the question as to whether you, as the employer, are bound to accept the withdrawal of an employee’s resignation.
The Labour Court clarified in this case that the act of resignation is unilateral and voluntary – the impact of resignation is to terminate the employment relationship.
The resignation is effective from the point at which it is communicated to the employer. Unless the employer consents to the resignation being withdrawn, it cannot be retracted. The fact that the contractual termination requirements may or may not stipulate as to notice to be served, has no bearing on whether a retraction is available or not.
The Labour Court held that once the resignation has taken effect, the only way that the relationship can be revived is for the employee to be re-employed, but that this does not constitute a reinstatement. In other words, a new employment relationship comes into being.
Equally, should the employer consent to re-employment, the decision on behalf of the employer will only have effect thereto if the individual representing the employer is authorized to act as such.
The findings of the Labour Court make it clear that once an employee communicates the resignation to the employer, the election cannot be unilaterally withdrawn. From the perspective of an employer, this decision confirms that the power in such a scenario lies with the employer. Should you (as the employer in this case) find yourself in a position where an employee is attempting to retract their resignation, you are not required to accept it as the employee, in fact, does not have any right of retraction.
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