The ManicaPost
Trust Maanda
Post Correspondent
AN employment contract can be terminated by the act of resignation by an employee.
Resignation takes various forms.
It can be in writing or can be verbal or can be by conduct.
A resignation is not always in writing as was held in Fonda v Mutare Club HH 40/1991.
The position of the law in relation to resignation of employees is well settled.
An employee may resign with or without giving notice.
The Supreme Court in the Church of the Province of Central Africa v Diocesan Trustees for the Diocese of Harare SC 48/12 held that resignation is a question of fact and can be done by conduct.
This position was well enunciated in Sick and Funeral Society of St John’s Sunday School v Golcar (1973) 1 CH 51 where the court remarked as follows regarding resignation by conduct: “It must be accepted that there can be resignation by conduct in addition to resignation by words.”
Where a legal practitioner tenders a resignation on behalf of his or client and he or she communicates it, that resignation is binding on the client.
That resignation becomes that of his or her client, unless it has been shown that the legal practitioner acted without instructions.
This was held in the case of AFM of Portland Oregon v Rev. Sibanda & Others HH463/15 .
A resignation is a unilateral act requiring neither acceptance nor rejection by the employer.
In other words, for resignation to take effect, the employer does not need to accept the resignation.
If the employer had a choice to reject the resignation, it means the employee would then work under slavery or forced labour.
Resignation is a unilateral voluntary act which takes effect as soon as the resignation has been communicated to the correct person or authority.
Once the resignation has been communicated and received, the employee is taken to have resigned. See Muzengi v Standard Chartered Bank and Another 2000 (2)ZLR where it was said at Page 141 that: “The giving of notice is an 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.
“If so, it seems to me to follow that notice once given is final, and cannot be withdrawn — except obviously by consent —during the time in excess of the minimum period of notice. 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 effect whereof he could not avoid without the permission of the applicant council.”
Resignation takes effect as soon as it has been communicated to the correct person or authority.
See Jakazi& Another v Church of Province of Central Africa 2010 (1) ZLR 335H.
In Eunice Madondo Vs Conquip Zimbabwe (Private) Limited SC 25/16,
an employee had a dispute with her employer’s managing director and general manager.
She was sent home on suspension. She completed a document called “Pension Withdrawal Claim Form” in terms of which she indicated in writing that the reason for the withdrawal of her pension benefits was that she was “leaving Conquip.”
The withdrawal form was presented to the employee’s general manager for him to complete the section required to be completed by a designated company official.
The general manager duly completed and signed the form.
The form was then presented to the pension company which in turn processed and released the pension contributions to her.
The employer held her to have resigned because she had indicated on the pension claim form that she was leaving Conquip.
She disputed that she had resigned from her employment, and argued that termination of membership with the pension scheme did not amount to unilateral termination of her employment.
She argued that it was wrong to hold her to have resigned from employment when the document that was used as evidence thereof is not a resignation letter nor was it addressed to the employer.
She was held to have unilaterally terminated her employment contract through her resignation as was indicated in the pension withdrawal form that she had signed.
It follows that notice, once given, is final and cannot be withdrawn except with the consent of the employer.
An employee cannot unilaterally withdraw his or her resignation from the employer in the absence of any allegation and evidence by the signatory of having signed the document under duress.
In order to take effect, the resignation must have been freely and voluntarily done and must clearly indicate an intention of the employee to terminate the employment contract.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or [email protected].
