VALIDITY OF VERBAL AND HEAT OF THE MOMENT RESIGNATIONS

In the 1996 sports-comedy drama, Jerry Maguire (actor Tom Cruise) is fired from
his agency after taking a principled stand against his industry. Following his termination, in one of the movies’ many famous scenes, Jerry makes a desperate attempt to persuade his colleagues to leave the agency with him. However, what unfolds is a moment of awkward rejection, where only one person, Dorothy Boyd (Renée Zellweger), a junior accountant, impulsively decides to join him and leaves the office with him.

While it is legally required that an employee provides a written resignation of their employment which evidences an unequivocal intention to end the employment relationship between the parties, the reality is that employees often provide only verbal resignations or in certain circumstances, such as Jerry, simply act in a manner which is consistent with resignation. When an employer acts on its belief that the employee had resigned, employers then face the risk of challenges for unfair dismissal by the very same employee deemed to have resigned.

In Mnguti v CCMA and Others[2015] ZALCJHB 277; (2015) 36 ILJ 3111 (LC) (handed down on 28 August 2015), the court confirmed that a resignation can be verbal, written, or even implied. The question to be answered is whether the reasonable person would have concluded, based on the conduct displayed, that the employee no longer had the intention to fulfil his/her part of the contract.

When defending these types of matters, the occurrence of a dismissal will be in dispute. This means that the employee will have the onus of proving the existence of a dismissal. In attempting to prove that a dismissal has occurred, the employee must prove the presence of an act by the employer which terminated their contract of employment. In the case of Ouwehand v Houd Bay Fishing Industries [2004] 8 BLLR 815 (LC), the Labour Court held that for a dismissal to have occurred, the employee must show that there was some overt act by the employer comprising the proximate cause of termination of employment. Furthermore, in the case of Marneweck c SEESDA Ltd [2009) SALC 31; [2009] 7 BLLR 669 (LC); (2009) 30 ILJ 2745 (LC), the court confirmed the approach in the Ouwehand case and further added that the act of termination requires an objective construction of the employer’s conduct. Therefore, when proving dismissal, the employee must show that the employer committed an overt act which objectively was the proximate cause of dismissal.

While the onus will be on the employee, there will also be a burden on the employer to prove that its version of having received a verbal or implied resignation is possible. In the case of Cooper and Another v Merchant Trade Finance Ltd (474/97) [1999] ZASCA 97 (1 December 1999), the court held that if an inference on favour of both parties is equally possible, then the party who bears the onus, i.e. the employee, will not be entitled to relief. Thus, in defending a matter where an employee claims not to have resigned as believed, an employer must be able to prove its version that the employee resigned is probable.

Employers should take care of the following:
1. Endeavouring as far as possible to ensure that discussions with the employee include a witness who can corroborate the employer’s version.
2. Ensuring that they keep record of all events leading up to and following the resignation such as, for example, an employee’s prior conversations and behaviour which would evidence an intention to unequivocally end the employment relationship between the parties.
3. The employer should place on record the version of events as quickly as possible after the event, e.g. addressing correspondence to the employee acknowledging their resignation.

On a final note, despite resignation being accepted as a unilateral act which cannot be undone, in CEPPWAWU and another v Glass and Aluminum 2000 CC [2002] 5 BLLR 399: (2002) 23 ILJ 695 (LAC), the LAC held that resignation in the heat of the moment does not terminate the employment contract if the employee has second thoughts soon thereafter. Thus, In Jerry Maguire it is plausible (at least in South African Labour Law) that Dorothy Boyd could have returned to her job the next day, claiming her resignation was made in the heat of the moment. Imagine what that would have done to the trajectory of the film?