TAKING NOTICE OF RESIGNATIONS

Lottering & Others v Stellenbosch Municipality (Labour Court) A resignation involves two separate elements –the unilateral termination of the contract of employment –the requirement to give notice Resignation by the employee is a unilateral act which does not require acceptance by the employer Notice of resignation must be unequivocal. The notice must indicate clearly that the employee is intending to resign Once an employee has communicated his resignation he cannot withdraw it unless agreed to by the employer

–The contract does not terminate on the date notice is given but only when the notice period expires (unless the notice requirement is waived) –Once the employee has given notice but does not work out the notice period the employer does not have to pay him –Late or short notice does not invalidate the notice, it merely creates a breach of contract. The employer can either hold the employee to the full period of notice or cancel and sue for damages –If the employer elects to hold him to the contract then the contract terminates when the full period of the notice expires

Mafika v SA Broadcasting Corporation Limited (Labour Court) Is resignation by sms valid? –Resignation is a unilateral act by an employee which evinces a clear intention not to continue with the contract –It may be tendered by words or conduct that would lead a reasonable person to conclude that the employee had evinced such an intention –An sms message is deemed to be written communication and would constitute a valid notice of termination

Muthusamy v Nedbank Limited (Labour Court) The effect of a resignation on disciplinary proceedings –a contract of employment only terminates when the notice period expires –an employer is entitled to institute and proceed with disciplinary action during the period of notice

African National Congress v Municipal Manager, George Local Municipality and Others (SCA) Communicating a resignation –a resignation has to be unequivocally communicated to the other party to be effective –a party to a contract who exercises his right to cancel must convey his decision to the mind of the other party to bring such cancellation into effect –a written communication can effectively be conveyed to its recipient’s mind only by its reading –a resignation letter only takes effect once it has been read by its intended recipient

South African Music Rights Organisation Limited v Mphatsoe (Labour Court) A calendar month’s notice does not necessarily mean that it takes effect on the first day of the month and expires on the last day Insufficient notice does not invalidate the notice but may give rise to a breach of contract and a claim for damages The measure of the employer’s damages is not the employee’s remuneration but the loss suffered pursuant to the breach

TOP TIPS ON HOW TO ANNOY A COMMISSIONER

JURISDICTIONAL POINTS IN THE CCMA

Bombardier Transportation (Pty) Limited v Mtiya and Others (Labour Court) Only three true jurisdictional challenges can be raised before the CCMA –non-compliance with time limit prescribed by S191(1)(b) of the LRA –whether the parties fall within the registered scope of a bargaining council that has jurisdiction over the parties –does the dispute concern an employment – related matter?

The distinction between true and quasi jurisdictional points - true jurisdictional points are those facts which the legislature has decided must exist before the CCMA acquires the power to act –quasi jurisdictional points are those facts which must be proved by the referring party –where the referring party must prove facts to controvert a jurisdictional challenge the point should be decided in the arbitration phase

The legal effect of a certificate of outcome –a conciliating commissioner can elect to deal with the jurisdictional point or defer it to the arbitration phase –if a conciliating commissioner decides to make a jurisdictional ruling it stands unless set aside by the Labour Court –If no ruling is made at conciliation, the parties are free to raise the same jurisdictional challenge before the arbitrating commissioner –the only legal significance of a certificate of outcome is to confirm that the dispute remained unresolved on a particular day

Sondola IT (Pty) Limited v Howes and Others (Labour Court) Binding rulings –there is a distinction between jurisdictional rulings and rulings which pertain to the substantial merits of the dispute –in principle, jurisdictional rulings are binding on another commissioner until set aside by the Labour Court –a commissioner is obliged to determine the substantive merits of a dispute and therefore cannot be bound by the rulings made in respect of the substantive merits of a dispute in earlier proceedings