Can an employee resign via text message?
To answer the basic questions about resignations, it's necessary to start by looking at the law. Section 37 of the Basic Conditions of Employment Act (BCEA) states that all terminations of employment must be in writing, unless given by an illiterate employee. It goes on to prescribe notice periods owed by the parties to each other, however these periods may be varied in a contract of employment, collective agreement or wage/sectoral determinations. Does a text message constitutes "in writing", especially considering how prolific new and established social media has become?
In 2008 the Labour Court held that a contract can be binding and legal if accepted or agreed to via SMS. Consequently, it would make sense to say that if a contract can be made legal via SMS, it can surely be terminated via SMS?
Recently, the Labour Court - in Mafika v SA Broadcasting Corporation Ltd (2010) 5 BLLR 542 (LC) - had to consider if an employee can terminate his employment by sending a SMS text message:
- Section 12 of the Electronic Communications and Transactions Act 25 of 2002 recognises data messages as being "in writing" provided they're accessible in a format that can be re-accessed.
- If an employee resigns using a data message, the resignation is valid and "in writing".
What happens if an employee who resigned wants to retract their resignation?
In many cases, an employee resigns and regrets the decision later. But this doesn't mean that the resignation isn't valid or may be retracted.
Since a resignation is unilateral, it becomes valid as soon as it's served on the employer. After all, an employer can't opt to reject a resignation – to do otherwise would be tantamount to slavery. However, the employer is under no obligation to accept the withdrawal of a resignation. Not even if the employee wishes to retract it within moments of it being served on the employer.
Sometimes employees make ill-considered or emotional decisions
This means that it's always advisable to discuss the matter with the employee or conduct exit interviews with employees wherever possible to find out why they resigned.
This may help you to identify previously unknown or objectionable factors in your office environment, or otherwise avoid negative consequences for your company, such as:
- Sexual harassment,
- Victimisation,
- Unfair labour practices, and
- Referrals to the CCMA or similar for constructive dismissal.
Employees who can show that their working conditions had become intolerable could cost a company heavy losses.
Employees who resign with immediate effect often refuse to work their notice periods
Often, you will have no available candidates to fill such vacant (and often critical) positions and will suffer heavy losses to productivity and profit as well as upset to your day-to-day operations. The sad reality is that there is no legal method you can use to compel a resigning employee to work the correct notice periods.
In addition, some employers often make the mistake of wanting to deduct the value of the notice period, from the employee's last payment, if they don't work through it. This can lead to an unfair dismissal referral to the CCMA. The worst case scenario for the employee will be that he or she will forfeit the payment they would normally have earned for work done during their notice period. This is in accordance with the maxim of "no work, no pay". You also may not withhold any part of the employee's last payment unless you're allowed to do so by agreement with the employee. If you do this, you will be violating section 34 of the BCEA, which prohibits unauthorised deductions from an employee's remuneration.
Your only recourse is to institute a civil claim for damages caused by breach of contract. The costs of such endeavour are, in most cases, prohibitive and not often followed.
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Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002). He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001. Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :
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