Resignation from employment

“A letter of resignation constitutes a final act of termination by an employee, the effects of which he cannot avoid without the permission of the employer. Once the employee tenders a letter of resignation to his employer, the contract of employment is terminated but the employer can only agree to the employee’s withdrawal of his resignation if he is inclined to doing so.”

A resignation is the formal act of giving up one’s position. It can occur when a person holding a position gained by election (https://en.wikipedia.org/wiki/Election) or appointment steps down. In the employment set up, when an employee chooses to leave a position, it is considered a resignation, as opposed to involuntary termination (https://en.wikipedia.org/wiki/Involuntary_termination_of_employment), which occurs when the employee involuntarily loses a job. Usually an employee’s employment contract, sets out how much notice (if any) must be given upon resignation. Section 12 (4) of the Labour Act Chapter 28:01 stipulates that “Except where a longer period of notice has been provided for under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be:

(a) three months in the case of a contract without limit of time or a contract for a period exceeding two years;

(b) two months in the case of a contract for a period exceeding one year but less than two years;

(c) one month in the case of a contract for a period exceeding six months but less than one year;

(d) two weeks in the case of a contract for a period of six months or less or in the case of casual work or seasonal work.

Whether an employee resigned or was terminated is sometimes a topic of dispute, because in many situations, a terminated employee is eligible for compensation for loss of employment which does not apply in the case of a resignation. For example, in the matter between Matema v Zimbabwe National Water Authority, (HH 103 — 2004), the applicant wrote a letter of resignation from employment as follows; “Re: Mrs P Matema: Resignation You are kindly advised that due to the ongoing conditions of employment, I am unable to accept a new contract with the Zimbabwe National Water Authority and I will thus hereby resign from your organisation with effect from February 23 2001. Can you waive my notice since I have 19 days’ leave.

“As I indicated from my previous correspondences I do feel and strongly submit that I am entitled to a termination package which I hope to receive in due course.”

The learned High Court Judge. Makarau remarked that “The effect of the above letter was to terminate the employer/ employee relationship between the applicant and the respondent even before the resignation was accepted by the respondent. (See Muzengi v Standard Chartered Bank and Another 2000 (2) ZLR 137 (H)). The applicant appears to labour under the belief that even after resigning, she could still opt to “receive” a retrenchment package. In this belief, she is wrong.

The term “retrenchment package” is a creature of the Labour Act and its predecessors and the regulations made thereunder. It means no more than a severance payment made by the employer to the employee as a result of the mutual agreement to terminate the contract of employment, or the termination of the contract at the instance of the employer but with the approval of the Minister administering the Act. (See Continental Fashions (Pvt) Ltd v Mupfururi & Others 1997 (2) ZLR 405 (SC)).”

The important lesson from the above matter is that retrenchment and resignation are two modes by which a contract of employment may be terminated. Having resigned from the employment of the organisation, an employee cannot seek to terminate the “dead” contract by way of retrenchment.

Some employees normally choose to resign during the course of disciplinary proceedings. The settled principle of law is well articulated as follows in Rustenburg Town Council v The Minister of Labour and Ors 1942 TPD 220 and 224:

“The giving of notice is a unilateral act: it requires no acceptance thereof or concurrence therein by the party receiving notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it. In the present case the position was undisputed, and I think undisputable, the town clerk is the authorised agent of the applicant council empowered to receive communications to it: once therefore the resignation in question had been lodged with him, it constituted a final act of termination by the third respondent, the effects whereof he could not avoid without the permission of the applicant council”.

There is a general belief amongst the workforce that they are entitled to holding on to benefits after resignation or termination of employment until such time when the employer pays the employee his/ her terminal benefits.

Unless specific written arrangement or agreement has been entered into by the parties after the resignation, benefits such as company vehicle, accommodation, fuel, holiday tickets, entertainment allowance etc, fall off upon resignation from employment. In conclusion, I would like to urge employees that the employer can institute a claim for the damages he may suffer as a result of the employee’s resignation without giving him adequate notice.

Disclaimer: Opinions expressed herein are solely those of the author.

Matthias Ruziwa is an experienced Arbitrator and progressing Strategic Human Resource Practitioner based in the Midlands Province, City of Kwekwe. You can contact Matthias at the following email address: mruziwa@gmail.com WhatsApp 0773 470 368