Taking notice of resignations
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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

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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



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

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