Can an employee withdraw his or her resignation if they change their mind?

An employment contract comes into existence when the employee offers his or her services to the employer and the employee accepts, or when the employer offers a job to the employee and the employee accepts.

An employment contract comes into existence when the employee offers his or her services to the employer and the employee accepts, or when the employer offers a job to the employee and the employee accepts.

Though there is no statutory requirement that the employment contract must be in writing, it is implied in the Basic Conditions of Employment Act (BCEA).

Section 29 of the BCEA requires the employer supply the employee with particulars of employment at the start of employment.

The employment contract may be terminated by mutual agreement, resignation or dismissal.

A resignation by an employee amounts to a repudiation, or refusal to accept, the contract of employment.

According to the common law principles of contract, once one party repudiates a contract the other party has an option to either accept or reject the repudiation.

In the employment context I do not think the employer's refusal of a resignation may have an effect on whether the employee resigns, unless the employment contract is for a fixed period.

Can an employee who offered to resign withdraw his resignation? It will of course depend on various factors.

There are employers who their policies have a cool-off period within which an employee may withdraw his or her resignation.

However, in the absence of that policy an employee's withdrawal of resignation will not have effect if the employer does not give consent.

It does not matter whether the employee withdraws his resignation before or after it is being accepted by the employer.

An employee therefore cannot just take back resignation.

This principle will also apply where an employer applied for a voluntary severance.

The application cannot be withdrawn without a consent of the employer.

It is advisable therefore that, if the employee offers to resign, that he or she give a conditional offer, that the acceptance of the resignation be communicated to them in writing within a particular time frame.

A failure by the employer to do so within the said time frame gives an opportunity to an employee to withdraw his or her resignation.

If the employer refuses to provide notice, this may be viewed as dismissal.

X