Withdrawal of resignation does not mean an automatic rehire

An employer who accepts a resignation withdrawal should get the employee to reapply for their job.

A recent labour court judgement has made it clear that an employee who resigns and later withdraws the resignation, has to go through the recruitment process again. That is if the employer accepts the withdrawal.

In the case, an employee was suffering from an unknown illness which subsequently led him to tender his resignation with immediate effect in April 2021.

Fifteen days later, his health condition improved, and he wrote a letter to his employer seeking to withdraw his resignation.

On the same day he received a letter from the administrator who represented his employer, the Dr JS Moroka municipality, who informed him that the withdrawal of his resignation was not accepted.

The employee returned to work claiming he had not seen the administrator’s email, and received his April salary. He turned to the acting municipal manager to affirm his continued employment, and the municipal manager accepted the withdrawal a month later.

Lizle Louw, partner at Webber Wentzel says reviving a working relationship between employer and employee can only take effect in the form of a new offer and acceptance. “This offer must be made by a representative of an employer with the required authority and legal capacity to make it enforceable,” she says.

The court, Lizle says, explained that an employee retracting a resignation is effectively seeking to be re-hired or re-employed. “If both employee and employer consent to continue the employment relationship, the subsequent employment relationship will be based on a new offer and acceptance of employment,” she says.

“The employee's argument that his employment relationship continued unaffected because he reported for duty and received a salary had to fail. The unilateral retraction could not hold.”