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“You Resigned” – “No, I Was Dismissed” – What Employers Need to Consider

In the South African employment landscape, resignations are a regular occurrence. However, when poorly managed, they may give rise to disputes, particularly where an employee later alleges that their resignation was not voluntary or was, in fact, a disguised dismissal.

This article outlines the legal position on resignations under South African labour law, clarifies the distinction between resignation and dismissal, and provides practical guidance for employers to protect their interests in the event of a dispute.

1. Understanding the Nature of a Resignation

A resignation is a unilateral act by the employee to terminate the contract of employment. Unlike a dismissal, it does not require the employer’s consent. The cornerstone of a valid resignation is that it must be voluntary. While the law does not prescribe that a resignation must be in writing, having written confirmation is highly recommended to prevent future disputes.

2. Legal Framework

The regulation of resignations falls within the ambit of the following legislation:

• Basic Conditions of Employment Act 75 of 1997 (BCEA) – particularly Section 37, which outlines notice requirements.
• Labour Relations Act 66 of 1995 (LRA) relevant where disputes arise concerning unfair dismissal, including constructive dismissal.
•  Case law – which informs the interpretation of what constitutes a voluntary resignation and how the CCMA assesses these disputes.
  
  

3. Verbal vs. Written Resignations

Although verbal resignations may be legally binding if clearly and voluntarily communicated, they pose significant evidentiary challenges.

Verbal Resignation

• Valid if freely and unambiguously expressed.
• May be disputed later regarding content, intention, or voluntariness.
• Requires strong corroborative evidence to defend in case of a CCMA or Bargaining Council referral.
  
  

Written Resignation

• Provides documentary proof of the employee’s intention.

• Protects the employer from false claims of dismissal.
• Allows for inclusion of key details such as final working day, notice period, and employee’s acknowledgement.
  
  

Recommendation: Always insist on a written resignation, or alternatively, confirm a verbal resignation in writing with the employee’s acknowledgement or failing this an sms or WhatsApp that can be downloaded.