The common law recognizes the right of an employee to terminate a contract of employment by giving the employer the agreed notice period or reasonable notice.1 This is an inherent feature of a contract of employment for an indefinite period and when notice is given the contract is regarded as having been lawfully terminated.2 Termination on notice at the instance of the employee is referred to as resignation and is not a dismissal.3 It is statutorily recognized in s12 (4) of the Labour Act [Chapter 28:01] (the LA)4 which governs the time periods that apply when a contract of employment is terminated on notice at the instance of either the employer or employee. Though the Labour Amendment Act No. 5 of 2015 (the LAA), in s12 (4a), caveated the employer’s right to terminate the contract of employment on notice, the employee’s right to resign on notice at any time was retained. Notwithstanding, resignation in Zimbabwe is heavily regulated by the common law.
Usually the legal act of resignation is unambiguous whilst in some cases it is not as straightforward as it seems. This often results in courts being called upon to determine whether an employee resigned or not. Some of the problematic situations involve cases where employees facing disciplinary action resign impulsively so as to avoid the stigma associated with a dismissal, but later on regret the act and attempt to resurrect the contract by withdrawing the resignation. Despite resignation, some employers have proceeded to conduct disciplinary hearings against employees. It is also common for employers to refuse to accept an employee’s resignation. In other instances, it is not unusual for employees to allege that when they resigned they did not appreciate the consequences of their actions due to emotional stress or that it was a moment of weakness or madness. Others claim that they resigned under protest, undue influence or duress rendering the termination constructive dismissal. Though the demise of the employment relationship is brought by an employee’s voluntary and deliberate conduct, the act of resignation has in some cases proved difficult to comprehend. This has inevitably raised several questions relating to the true nature of the juristic act constituted by resignation.
There are various questions that have arisen regarding resignation, and both the legislature and the judiciary have gone a long way in answering these questions. Various academic writers have weighed in, creating a lot of relevant jurisprudence on this issue. The questions vary from the simple and straightforward to the complicated. For instance, what in essence constitutes a resignation? How should resignation be communicated, and at what stage does resignation become effective? What is the effect of a resignation on the employment relationship? Is there an obligation on the employer to accept or reject a resignation? What are the remedies available to an employer against an employee who resigns without giving notice? Can a resignation be withdrawn by an employee? Can an employer continue with disciplinary proceedings if an employee resigns so as to avoid such proceedings? Is it possible for an employee who has committed an act of misconduct to be given an option to resign or face disciplinary action? What is the difference between resignation and constructive dismissal, retirement, retrenchment, and mutual termination? Is an employee entitled to any terminal benefits on resignation? This article attempts to ascertain the true nature of the legal act of resignation and debunk the fallacies associated with resignation.5 In essence, it sheds some light on the diverse questions raised above and the legal and practical implications of the legal provisions relating to resignation. The mechanics of resignation will further be discussed against the backdrop of the abovementioned problematic questions. Critical to this discussion are rights of both employees and employers, and the implications on the relationship between these two parties on resignation.