Is a Verbal Resignation Valid in South Africa?

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“I quit! I’ve had it with this place!”

Is this a resignation or must more be done to give effect to one? It makes sense for a reasonable employer to wait a while before reacting to an employee’s verbal utterances. An employer needs to assess the situation after the verbal resignation has been given and formally acknowledge any utterance that indicates possible resignation for it to be binding on both parties.

It is incumbent on the employee to follow up with another action to give effect to their words. A written notice will cause the notice period to run as usual. The employee can also physically leave (without written notice) to give proof of their full intent to resign.

How do I resign from thee? Let me count the ways

In terms of section 37(4)(a) of the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”), all terminations must be given in writing, except if the employee is illiterate. However, in a recent labour appeal court case, the court has ruled that employers are now allowed to accept voluntary verbal resignations provided that the employer can prove that the employee’s action clearly and unambiguously indicates that the employee has voluntarily chosen to terminate the employment relationship.

Given the above, there are now two ways to effectively terminate employment with an employer. Resignation can take place in two ways: a written notice in terms of section 37 of the BCEA or a verbal one with or without clear action. The clear action can involve handing in issued equipment, leaving the work premises, and accepting employment elsewhere.

The resignation must always be given on a voluntary basis because any coerced resignation falls within the realm of constructive dismissal.

The intention is not enough

Hearing of an employee’s intended resignation via the grapevine or office gossip should not be construed as a resignation nor does it amount to resignation. It should also not be the basis for an employer to pre-empt the inevitable and take matters into their own hands, especially if the employment relationship is already a rocky one.

It follows that a resignation has to be clear and unambiguous, and it should not be dependent on other factors. When the employee issues a verbal resignation that does not fulfil the above requirements, it is important that the employee carefully ascertains from the employee what their intentions are without goading the employee to resign.

Consent and refusal conundrum

A verbal resignation that was clearly communicated to an employer cannot be refused by the employer. Also, for a verbal resignation to be effective, the employer does not need to formally accept it. However, in order to withdraw a verbal resignation, the employee needs the employer’s consent to do so.

The employer needs to at least acknowledge a verbal resignation and ask the employee what they intend on doing next. This will indicate to other employees that verbal resignations are taken seriously and that it should not be thrown around willy-nilly.

Do notice periods apply for verbal resignations?

Notice periods for resignation or termination are often included in the employment contract. However, in the absence of an employment contract or express termination terms in the employment contract, the minimum notice periods in the BCEA will apply:

• 1 week’s notice for employees who have been employed with the employer for less than 6 months;
• 2 weeks’ notice for employees who have been employed with the employer for more than 6 months but less than 1 year; and
• 4 weeks for employees who have been employed with the employer for more than 1 year.

In the case of verbal resignation, the notice period will begin running when the employee follows it with a notice of resignation in writing or the employer formally accepts such conduct. The Act requires an employee to continue working during the notice period.

Verbal resignations during suspension or probation

An employee cannot resign with immediate effect during the suspension. A WhatsApp voice note or a call to the employer stating that the employee is resigning will be invalid. It would be considered a breach of the employment contract and an abscondment of their duties.

Another exception is that an employee cannot verbally resign with immediate effect during probation. The written notice must follow in terms of the prescribed notice periods either in law or according to the employment contract.

In the above instances, the employee would not need to take any further action beyond the written notice of resignation. In a sense, they would be coupling both a verbal voluntary resignation and a written one. It can only serve to seal their resignation should they choose to initiate the process verbally first.

Resignation or self-dismissal?

It is important to note that verbal resignation is not equivalent to self-dismissal. In fact, there is no such thing in any case. If the employee does ‘dismiss themselves, they will be subject to disciplinary action for abandoning their employment and absconding from their duties. Dismissal is the employer’s prerogative. Resignation is the employee’s prerogative. Provided that all proper channels have been followed.

Conclusion

Verbal resignation coupled with the action of leaving is the way to make a verbal resignation valid. No situation is so perfect that the procedure can be set in stone. However, the employer needs to reasonably ascertain a legitimate case from a case where an employee always says such things by way of threat or manipulation and never carries it out. Each instance of verbal resignation must be taken on its own merits. Employees that are on suspension or probation cannot verbally resign without written notice. An employee should not cry wolf too often if they expect their resignation to be taken seriously by the employer.

– Lisa Thomas

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