Employee resignations

[duncan drennan]

Today's Labour Guide newsletter covered the issue of when a resignation is a valid resignation.

“The test for determining whether an employee resigned or not is that an employee has to, either by word or conduct, show a clear and unambiguous intention not to go on with his contract of employment in that he has to act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfill his part of the contract.”

I found the three examples used interesting, two cases of a verbal resignation, one where the court found that there was no resignation (i.e. unfair dismissal) and the other where the court found the employee had tendered their resignation. Then another case is used to demonstrate use of email to resign, and that there is no cooling off period for resignations.

Read the entire article on labour guide's website

[stephanfx]

Question: So if I blow a gasket at work, storm out, shouting to the receptionist that I resign, it is in fact not a resignation, but if I should say the same to one of the directors or the manager, then it is a resignation?

Looks like who you resign at is also a big factor. Or am I blindingly confused?

[duncan drennan]

I think that is it really a question of ambiguity. It must be very clear that the employee's intention is to resign, and clear steps should be taken.

In the one verbal case, there were no actions other than the one comment. In the other verbal case the employee accepted the payment of money due to her as a result of resignation, which clearly indicates intent to resign.

I think the message is that as an employer you should be sure that the person has actually resigned. Having it in writing with dates, etc. is clearly the easiest way.

[Dave A]

I'm particularly interested in the fact that verbal resignations can be acceptable under the right conditions.

I had a situation arise about 6 months ago. I'll call it a case of excessive absenteeism - although really it was a case of the employee failing to report to work and giving bogus reasons. Possibly irrelevant to the core issue here though.

I'd set up a preliminary investigative meeting and towards the end it became clear to the employee that we were onto her deception. She tendered her resignation verbally and stormed off. I followed up over the next few days asking for written confirmation. She emailed back to say that she "would never confirm her resignation in writing."

After a week, I played safe, called a disciplinary with all the correct notices etc. When she failed to attend it was enough to justify instant dismissal. Officially her employment was terminated by us.

But based on the above, it seems the verbal resignation would have been acceptable. She never came back to work....

[duncan drennan]

She emailed back to say that she "would never confirm her resignation in writing."

So does that classify as a written confirmation of resignation???

[Dave A]

I debated relying on that angle.

The whole thing got a bit messy. Basically she was trying to quit, but without resigning so that she could get her UIF payments I think. It was quite clear that if I dealt with it as a resignation, I had a round coming with the CCMA. But she never came back to work, so perhaps that would have been OK.

In the end I played safe. She got her UIF. I lost some dead weight.