Resignation – in writing or verbally – and what is”in writing”?

CONCLUSION
Where an employee communicates with a clear and unambiguous verbal resignation, it is acceptable to the courts.
A requirement in law or contractual requirement that a document or Information must be in writing is met if the document or Information is-
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference…

ANALYSIS
The Basic Conditions of Employment Act (75 of 1997) deals with termination of employment. Section 37(4)(a) states, “Notice of termination of a contract must be given in writing, except when it is given by an illiterate employee”. By and large, that
is a sensible approach and to be encouraged; but the Courts have given examples of when a verbal resignation is acceptable.
It is first necessary to understand how the Courts view resignation.

In Sihlali v South African Broadcasting Corporation Ltd1 the Labour Court held:
“A resignation is a unilateral termination of a contract of employment by the employee. The Courts have held that the employee must evince a clear and unambiguous intention not to go on with the contract of employment, by words
or conduct that would lead a reasonable person to believe that the employee harboured such an intention.”
Further, “Notice of termination of Employment given by an employee is a final unilateral act which once given cannot be withdrawn without the employer’s consent . . . it is not necessary for the employer to accept any resignation that
is tendered by an employee or to concur in it, nor is the employer party entitled to refuse to accept a resignation or decline to act on it.” And, “A resignation is established by a subjective intention to terminate the employment relationship, and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention. The courts generally look for unambiguous, unequivocal words that amount to a resignation ….”.

The common-law rules pertaining to resignation are covered under Lottering and Others v Stellenbosch Municipality2, as follows:
1 Sihlali v South African Broadcasting Corporation Ltd [2010] ZALC 1
2 Lottering and Others v Stellenbosch Municipality (C159/2010) [2010] ZALC 67; [2010] 12 BLLR 1306 (LC) ; (2010) 31 ILJ 2923 (LC) (7 May 2010)

Notice of termination must be unequivocal – Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) at 830E.
Once communicated, a notice of termination cannot be withdrawn unless agreed – Rustenburg Town Council v Minister of Labour 1942 TPD 220; Du Toit v Sasko (Pty) Ltd (1999) 20 ILJ 1253 (LC);and Sihlali v SA Broadcasting Corporation (2010) 31 ILJ 1477 (LC) at para 11.
Termination on notice is a unilateral act – it does not require acceptance by the employer – Sihlali at para 11; Wallis Labour and Employment Law para 33 at 5-10 ….’
The Court in African National Congress v Municipal Manager, George Local Municipality and Others added a further requirement, where it comes to a resignation, being that the resignation ‘…. must be effective immediately or from a
specified date ….’. The Labour Court in Mnguti v QK Meats SA3 , “It is therefore possible for an employee to resign by way of conduct, or verbally, without a written resignation being submitted. In deciding whether such a resignation indeed exists, the conduct of the employee must be considered, in order to decide if it falls within the parameters of the above mentioned principles.” Thus, where an employee communicates with a clear and unambiguous verbal resignation, it is acceptable to the courts. What is considered to be “in writing”. This was also covered in Sihlali (mentioned above). An employee sent an SMS to his CEO stating that he “quit with immediate effect”. Subsequently the employee argued that an SMS was not “in writing”.
The court referred to the Electronic Communications and Transactions Act which states the following at section 12:
A requirement in law that a document or Information must be in writing is met if the document or Information is-
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference…
As an SMS qualifies as a data message this satisfied the “in writing” requirement .Of course, emails, WhatsApp, Twitter, Facebook would also be acceptable as “in writing” as they are data messages and, generally, accessible in a manner usable for subsequent reference”

 

Article written by Graham Nicholls