Tapiwa G Kasuso
The common law recognises the right of an employee to terminate a contract of employment on notice.
This termination is commonly known as resignation and is codified in Section 12(4) of the Labour Act [Chapter 28:01], which governs time periods that apply when a contract of employment is terminated on notice.
In most instances, resignation is unambiguous, while in some instances, it is not as straightforward as it seems. This often results in disputes relating to whether or not an employee resigned spilling into the courts.
Questions which have been raised by litigants and the courts relating to the true nature of the legal act of resignation vary from the simple and straightforward to the complicated.
For instance, what is a resignation? What is the effect of a resignation on the employment relationship? Is there an obligation on the employer to accept or reject a resignation? Can a resignation be withdrawn by an employee? Can an employer continue with disciplinary proceedings if an employee resigns to avoid such action? Is an employee entitled to terminal benefits on resignation? What are the remedies available to an employer against an employee who resigns without giving notice?
This contribution seeks to shed some light on the various questions raised above and the legal implications of the statutory provisions relating to resignation. It will seek to debunk the fallacies and myths associated with resignations.
What is resignation?
The Labour Act does not define the term resignation, as such reliance must be placed on the definition developed by the courts. In Madondo v Conquip Zimbabwe (Pvt) Ltd SC 25/16,the Supreme Court accepted that the act of resignation is a voluntary and deliberate unilateral act by the employee in terms of which he or she brings the contract of employment to an end without the consent of the employer, with or without notice.
For it to be effective, it must indicate an employee’s intention to give up his or her job. In determining whether an employee resigned, a court will look at the facts of each case from a reasonable employer perspective.
If the employee’s conduct and or words clearly and unequivocally lead a reasonable employer to the conclusion that the employee did not intend to continue with his or her employment, a finding that the employee resigned will be made.
This test was confirmed in the following cases, Lee Group of Companies v Ann Clare Elder SC 6/05, Muzengi v Standard Chartered Bank 2002 (1) ZLR 334 (S) and Riva v NSSA 2002 (1) ZLR 412 (H).
However, it must be noted that the hallmark of a resignation is that it is a voluntary and deliberate unilateral act of the employee bringing the employment relationship to an end. Thus, if a resignation is tainted with force, coercion, duress or undue influence by the employer, it ceases to be a resignation but constructive dismissal.
For instance, in Fonda v Mutare Club HH 40/91, an employee who had incurred shortfalls was forced to resign as an alternative to having the matter handed over to the police. The court did not hesitate to conclude that the resignation was tainted with duress and, therefore, constituted constructive dismissal.
Nevertheless, in Mudakureva v GMB 1998 (1) ZLR 145 (S), the court noted that there was nothing wrong in giving an employee who is facing allegations of misconduct a reasonable alternative like resignation.
Is there an obligation
on the employer to accept
or reject a resignation?
Since resignation is a unilateral act by the employee, it requires no acceptance thereof or concurrence therein by the employer. Its validity is not dependent on its acceptance or rejection by the employer. See Kadada v City of Harare HH 26/94, Saltrama (Pvt) Ltd v Majindwi SC 79/04 and A. C Controls (Pvt) Ltd v Midzi and Another HH 75/10.
The rationale for this proposition was succinctly summarised in the South African case of Mafika Sihlali v SABC (2010) 31 ILJ 1477 (LC) as follows, “If a resignation is to be valid only once it is accepted by the employer, the latter would in effect be entitled, by a simple stratagem of refusing to accept a tendered resignation, to require an employee to remain in employment against his or her will. This cannot be – it would reduce the employment relationship to a form of indentured labour.”
Without doubt, forcing an employee to work against his or her will would amount to forced labour, which is prohibited in terms of Section 55 of the Constitution. This constitutional right is given effect in Section 4A (1) of the Labour Act which makes forced labour an unfair labour practice as well as a criminal offence.
How is a resignation
The Labour Act does not prescribe a set method of communicating a resignation. Notwithstanding, it has since been accepted that a resignation can be conveyed through various forms of communication. It can either be oral or written communication or by conduct, as long as the words or conduct are unambiguous and unequivocal that an employee does not intend to continue with his or her employment. On this aspect it may be necessary to have regard to case law authorities.
In Lee Group of Companies v Ann Clare Elder supra, an employee had an altercation with her manager after being advised that she was not going to be confirmed as a permanent employee.
Disturbed by this revelation, she packed her personal belongings and stayed away from work for three days. When she came back, she brought with her an apology letter and a doctor’s report to the effect that she was not feeling well. The employer took the stance that she had resigned and had even addressed a letter to her to that effect.
Dissatisfied with this development, she challenged the termination and the issue for determination was whether or not she had resigned. The court assessed the facts objectively and concluded that her conduct in leaving the workplace abruptly, going to stay away for three days and the letter by the employer, indicated an unequivocal and unambiguous intention to resign.
In Madondo v Conquip Zimbabwe (Pvt) Ltd supra, an employee completed a document called “Pension Withdrawal Claim Form” in terms of which she indicated reason for withdrawal as “leaving Conquip”. The form was signed by her manager. The court accepted that by that act alone, the employee had resigned.
In Mafika Sihlali v SABC supra, an employee sent a text message to the chief executive officer indicating that “he quit with immediate effect”. The Labour Court of South Africa held that the text message constituted written communication and the employee had resigned.
Can an employee
withdraw a resignation?
Most employees utter words indicating an intention to resign as a result of uncertainty or a manifestation of anger and emotions. After realising that their impulsive decision was ill-conceived, they attempt to withdraw the resignation. Once communicated to the appropriate authority, a resignation takes effect and becomes binding such that it cannot be withdrawn without consent of the employer.
However in certain limited circumstances, it is possible for a resignation to be withdrawn. In ANC v Municipal Manager, George Local Municipality and Others  3 BLLR 221 (SCA), it was held that if an employee resigns by written communication, that resignation becomes effective when conveyed to its recipient’s mind by its reading.
Therefore, if the communication has not yet been read by its intended recipient the employee is entitled to withdraw the resignation without consent of the employer. Once the communication has been read, the employee cannot withdraw the communication.
What is the effect
of a resignation?
A resignation brings the employment contract to an end and the rights and duties which arise from this contract are extinguished. Termination is not on the date which the notice is given but on expiration of the notice period. The effect of resignation is to place the employee beyond the reach of the disciplinary arm of the employer. In other words, an employer cannot discipline or dismiss an employee who has resigned. The employment contract no longer exists.
This position was confirmed in Muzengi v Standard Chartered Bank 2002 (`1) ZLR 334 (S). Thus, if an employee resigns in the middle of disciplinary proceedings, an employer can no longer continue with the proceedings.
If an employee elects not to render his or her services during the notice period, the employer has no obligation to remunerate the employee. Nonetheless, if the failure by the employee to render services during the notice period is at the instance of the employer, then the employer must pay the employee cash in lieu of notice in terms of s12 (7) of the Labour Act.
On resignation, an employee is also entitled to wages and benefits on termination prescribed in Section 13 of the Labour Act, which include cash in lieu of notice, cash in lieu of vacation leave, arrear salaries, any pension where applicable and outstanding medical aid, among others.
The employee’s right to terminal benefits in Section 13 of the Labour Act does not override the employer’s right to set off any liquidated debts owing to the employer in terms of Section 12A (6) of the Labour Act.
It must also be noted that an employee who resigns is not entitled to the minimum retrenchment package prescribed in Section 12c (2) of the Labour Amendment Act No. 5 of 2015.
As held in Matema v Zinwa HH 103/04, a retrenchment is different from a resignation and the benefits that arise from both are claimed differently and under different legal situations. In the same vein, a resignation is different from retirement and mutual termination.
Remedies available to employers against employees who resign without notice
Resignation without notice or on short notice (unfair resignation) is not illegal, nor is it an unfair labour practice under the Labour Act. However, this does not mean that employers have no remedy against an employee who resigns summarily or who gives a deficient notice. The employer’s remedy lies in the common law. If an employee’s resignation is unfair, the employee will be in breach of contract and this will entitle the employer to two alternative remedies — specific performance and damages.
In respect of specific performance, the breach will entitle the employer to hold the employee to the contract demanding that he or she gives proper notice and render services for the notice period. The act of resignation remains a lawful act of bringing the employment contract to an end. The breach relates only to the failure to give notice and an employee will be ordered to serve the notice period.
This remedy was granted in the following South African cases – Nationwide Airlines (Pty) Ltd v Roediger and Another (2006) 27 ILJ 1469 (H), Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) and Immuculata Secondary School v Bvuma and Another  ZAGPJHC 168.
The other alternative remedy available to an employer is to claim damages arising from breach of contract as a result of the failure by the employee to serve notice (See A. C Controls (Pvt) Ltd v Midzi and Another HH 75/10).
It is common for employers to deduct from an employee’s terminal benefits an amount which is equivalent to notice pay as damages for failure to give notice. With respect, this approach is wrong and has no legal basis.
Section 12A (6) of the Labour Act bars employers from resorting to self-help by precluding them from effecting any deductions or set off of any description from an employee’s remuneration save for those prescribed in subsections (a) to (e).
The proper course of action is for the employer to institute a claim for damages and provide compelling proof of damages with an easily identifiable quantum. There is no logic in assuming that these damages equate to the remuneration the employee would have earned had he or she served the notice period.
The principles applicable in claiming these damages were set out in the following South African cases, South African Music Rights Organisation v Mphatsoe  JOL 23 476 (LC), National Entitled Workers Union v CCMA (2007) ILJ 1223 (LAC) and Labournet Payment Solutions (Pty) Ltd v Vasloo (2009) ILJ 2437 (LC).
It must also be noted that in terms of Section 89 (1) of the Labour Act, the Labour Court has no jurisdiction to entertain a claim for specific performance or damages in unfair resignation cases. This remains the province of the High Court which has inherent jurisdiction over all persons in Zimbabwe.
This contribution demonstrated that resignation is a voluntary, unilateral act by the employee whose effect is to terminate the contract of employment. It debunked myths associated with resignations by answering various problematic questions. The most important lesson for employees is that the decision to resign must be an informed one and not triggered by emotions or taken impulsively.
While an employee has a right to resign, such a right must be exercised within the confines of the law. Employees must respect the employer’s right to be given notice of resignation, otherwise they face the risk of being saddled with a claim for specific performance or damages.
On the same note, employers must also respect employees’ rights on resignation such as the right to be paid terminal benefits. Employers must also be reminded that they do not have the right to reject a resignation.
Tapiwa G Kasuso (LLBS (UZ), LLM (Unisa), LLD Cand), is a registered legal practitioner, independent arbitrator and lecturer in the Faculty of Law at Midlands State University.
1,493 total views, 1 views today