TAKING NOTICE OF
RESIGNATIONS
Lottering & Others v Stellenbosch
Municipality (Labour Court)
• A resignation involves two separate elements
– the unilateral termination of the contract of employment
– the requirement to give notice
• Resignation by the employee is a unilateral act which does not
require acceptance by the employer
• Notice of resignation must be unequivocal. The notice must
indicate clearly that the employee is intending to resign
• Once an employee has communicated his resignation he cannot
withdraw it unless agreed to by the employer
– The contract does not terminate on the date notice is given but
only when the notice period expires (unless the notice
requirement is waived)
– Once the employee has given notice but does not work out the
notice period the employer does not have to pay him
– Late or short notice does not invalidate the notice, it merely
creates a breach of contract. The employer can either hold the
employee to the full period of notice or cancel and sue for
damages
– If the employer elects to hold him to the contract then the
contract terminates when the full period of the notice expires
Mafika v SA Broadcasting Corporation Limited
(Labour Court)
• Is resignation by sms valid?
– Resignation is a unilateral act by an employee which evinces a clear
intention not to continue with the contract
– It may be tendered by words or conduct that would lead a reasonable
person to conclude that the employee had evinced such an intention
– An sms message is deemed to be written communication and would
constitute a valid notice of termination
Muthusamy v Nedbank Limited (Labour Court)
• The effect of a resignation on disciplinary proceedings
– a contract of employment only terminates when the notice period
expires
– an employer is entitled to institute and proceed with disciplinary
action during the period of notice
African National Congress v Municipal Manager,
George Local Municipality and Others (SCA)
• Communicating a resignation
– a resignation has to be unequivocally communicated to the other
party to be effective
– a party to a contract who exercises his right to cancel must
convey his decision to the mind of the other party to bring such
cancellation into effect
– a written communication can effectively be conveyed to its
recipient’s mind only by its reading
– a resignation letter only takes effect once it has been read by its
intended recipient
South African Music Rights Organisation Limited v
Mphatsoe (Labour Court)
• A calendar month’s notice does not necessarily mean that it takes
effect on the first day of the month and expires on the last day
• Insufficient notice does not invalidate the notice but may give rise to
a breach of contract and a claim for damages
• The measure of the employer’s damages is not the employee’s
remuneration but the loss suffered pursuant to the breach
TOP TIPS ON HOW TO
ANNOY A COMMISSIONER
JURISDICTIONAL POINTS
IN THE CCMA
Bombardier Transportation (Pty) Limited v Mtiya
and Others (Labour Court)
• Only three true jurisdictional challenges can be raised before the
CCMA
– non-compliance with time limit prescribed by S191(1)(b) of the LRA
– whether the parties fall within the registered scope of a bargaining
council that has jurisdiction over the parties
– does the dispute concern an employment – related matter?
• The distinction between true and quasi jurisdictional points
- true jurisdictional points are those facts which the legislature has
decided must exist before the CCMA acquires the power to act
– quasi jurisdictional points are those facts which must be proved by the
referring party
– where the referring party must prove facts to controvert a jurisdictional
challenge the point should be decided in the arbitration phase
• The legal effect of a certificate of outcome
– a conciliating commissioner can elect to deal with the
jurisdictional point or defer it to the arbitration phase
– if a conciliating commissioner decides to make a jurisdictional
ruling it stands unless set aside by the Labour Court
– If no ruling is made at conciliation, the parties are free to raise
the same jurisdictional challenge before the arbitrating
commissioner
– the only legal significance of a certificate of outcome is to
confirm that the dispute remained unresolved on a particular day
Sondola IT (Pty) Limited v Howes and Others
(Labour Court)
• Binding rulings
– there is a distinction between jurisdictional rulings and rulings
which pertain to the substantial merits of the dispute
– in principle, jurisdictional rulings are binding on another
commissioner until set aside by the Labour Court
– a commissioner is obliged to determine the substantive merits of
a dispute and therefore cannot be bound by the rulings made in
respect of the substantive merits of a dispute in earlier
proceedings