SACWU obo Sithole and Afrox Gas Equipment Factory (Pty) Ltd

(2006) 16 MEIBC 7.1.4

The applicant employee resigned after 17 years of service. He had apparently decided to take up a position elsewhere with better prospects.

He submitted his resignation on the 11th of March 2005 in writing, thanking the company for the time that he had spent there. On the 30th of March, he sent another letter stating that he was withdrawing his resignation. The reason for his decision was that he had not realised that he was still indebted to the company for a study bursary that they had assisted him with. The terms of the bursary required that he repay the balance of the bursary on his departure.

 

The company indicated that they could not accept the withdrawal of the resignation as they had already begun processing the documentation associated with his resignation and that arrangements to fill his position had already been made.

The employee referred a dispute claiming that he had been unfairly dismissed. The union argued on behalf of the employee that the employer was obligated to accept the employee’s retraction given that the employer had not formally responded in writing that they had accepted his resignation. They stated that the employer had no right to process the resignation particularly because the employee had expressly indicated that he had decided to withdraw the resignation.

The arbitrator had to decide whether the employer was obligated to accept the withdrawal given the facts above and whether an unfair dismissal had occurred.

The arbitrator decided that he did not agree that the employer was obligated to accept the withdrawal. He stated that when an employee voluntarily resigns on notice, without alleging constructive dismissal, he has made a conscious decision to terminate his employment.

Under cross-examination , the employee confirmed that he had not been pressurized into resigning. Given this, there could not be any talk of a constructive dismissal.

The fact is that the employee only subsequently changed his mind when he discovered the financial implications of his resignation.

The arbitrator held further that an employee can tender his resignation and leave the employ of the company even though the employer does not accept the resignation. There is essentially nothing that the employer can do to force an employee to remain in its employ. Once faced with a resignation letter, the employer has no option but to accept the resignation.

When an employee resigns and subsequently withdraws the resignation, he must accept that there is no guarantee that the employer will accept the withdrawal and reverse the termination process. In addition, there is no obligation on the employer to do so.