Can you withdraw a resignation, and what is garden leave?

People resign for all sorts of reasons, and sometimes they regret it within hours. A heated meeting ends with "I quit". A resignation letter goes in because a new job offer looked certain, and then the offer falls through. Or the employee resigns, and the employer replies that they need not come back at all, and should stay home until the notice period ends. This guide explains when a resignation can be taken back, what happens when a resignation was not really voluntary, what an employer may do with your notice period, and how garden leave works, including its link to a restraint of trade.

This guide is part of our Leave in South Africa: every type of leave and your rights, which links every guide on the topic.

A resignation is a one-sided act

A resignation is the employee's decision to end the contract. It is unilateral, meaning it does not need the employer's agreement to be valid. The Labour Court said so in Sihlali v SABC, decided in 2010: an employer does not have to accept a resignation, and it cannot refuse to act on one either. Otherwise an employer could keep someone employed against their will simply by declining to accept their letter.

To count as a resignation, your words or conduct must show a clear and unequivocal intention to end the employment. A written letter that says "I resign" or "please accept this as my notice" plainly does. The Basic Conditions of Employment Act requires notice to be given in writing, unless the employee cannot write.

The resignation takes effect when it is communicated to the employer. If you give notice, the contract ends when the notice period expires, and you remain an employee with all your rights and duties until then. The notice period guide explains how long that is.

Can you take it back?

Not on your own. Because the resignation took effect when you communicated it, the courts have held that you cannot withdraw it unless the employer agrees. That remains true during the notice period: you are still working, but the end date is fixed and only the employer can agree to cancel it.

In a 2022 Labour Court case involving the Dr JS Moroka Municipality, a senior official resigned citing ill health and tried to withdraw his resignation two weeks later. The administrator in charge of the municipality refused. Some weeks later another official, acting in a senior post, wrote to say the withdrawal had been accepted. The court held that the administrator's refusal stood, that the later acceptance came from someone without authority and, in any event, after the notice period had ended. Consent given after the contract had ended was in substance a fresh appointment, not a withdrawal of the resignation.

Three practical points follow:

• Ask quickly and in writing, and make sure your request goes to someone who has the authority to agree.
• Get the employer's consent in writing, confirming that the resignation is withdrawn and your employment continues on the same terms and with unbroken service.
• Do not assume silence means yes. Continuing to report for work, or being paid for a few extra days, has not been treated by the courts as consent.

Think about what you lose before you resign. A voluntary resignation usually means no UIF unemployment benefits, as the guide to UIF after resigning explains, and no severance pay. If the employer refuses to take you back, you cannot force it to, and you have no claim simply because it said no.

Words spoken in anger and withdrawn almost immediately are a grey area. Whether "I quit" shouted in a meeting showed a clear intention to resign depends on the facts, and arbitrators have differed. Do not rely on that argument if you can avoid it.

When the resignation was not really yours

Sometimes an employee resigns because the employer made staying impossible. Section 186(1)(e) of the Labour Relations Act 66 of 1995 treats that as a dismissal, called constructive dismissal, where the employer made continued employment intolerable. The test is strict, and claims often fail where the employee did not first raise a grievance. The constructive dismissal guide explains what you must prove.

A different situation is the ultimatum: "resign now, or we will dismiss you". A resignation signed under that kind of pressure, without time to think or take advice, may be treated as a dismissal in substance. If you sign one, write to the employer promptly saying you did so under pressure. Either way, a dismissal dispute must reach the CCMA within 30 days, so do not delay while you try to persuade the employer to take you back.

Resigning to avoid a hearing

Resigning "with immediate effect" in the face of a disciplinary hearing does not necessarily end the matter. In Standard Bank v Chiloane, in 2020, the Labour Appeal Court held that where the contract requires notice, the employer may hold the employee to it and complete the disciplinary process in that time. The guide to resigning with immediate effect covers this in detail.

What the employer can do with your notice period

Once you resign with notice, your employer has several options:

• Have you work the notice. This is the default.
• Pay you out. Section 38 of the Basic Conditions of Employment Act lets an employer pay you the remuneration you would have earned during the notice period instead of having you work it. Your employment ends early, but you are no worse off financially.
• Agree to an earlier end date. If you want to leave early and the employer agrees, the contract can end sooner by agreement, usually without pay for the unworked period. Get the agreement in writing.
• Put you on garden leave. You stay employed and paid but do not come to work.

What the employer should not do is simply end your employment on the day you resign, without your agreement and without paying the notice period. You are entitled to the notice period's pay, and some arbitrators have treated an employer's decision to cut the notice period short as a dismissal. The law on that last point is not settled, but the claim for the unpaid notice pay is strong.

What garden leave is

Garden leave means you remain an employee during your notice period, on full pay and benefits, but the employer tells you not to come to work and not to do any work. The name comes from the idea that you spend the time in your garden. It is most common for senior staff, sales people and anyone with access to clients, pricing or confidential information who is moving to a competitor.

The Basic Conditions of Employment Act does not mention garden leave, so its terms come from your contract. A well-drafted clause will say that the employer may place you on garden leave, that you must remain available, that you may not start work for anyone else, and that you must return company property and stop contacting clients. Whether an employer may impose garden leave without such a clause has not been clearly settled by South African courts. Paying you in full and asking you to stay home is unlikely to harm you, but taking away your duties to humiliate you, or cutting your pay, is a different matter.

During garden leave, you are still bound by your duties as an employee: confidentiality, good faith and not competing with your employer. Starting the new job early is a breach of contract.

Garden leave and a restraint of trade

Employers sometimes combine a long notice period with garden leave and then a restraint of trade after the employment ends. In Vodacom v Motsa, decided by the Labour Court in 2016, the court considered six months of garden leave together with a six-month restraint when deciding whether the restraint was reasonable, and enforced the restraint. Academic commentators have argued that combining the two can be abused, and that a restraint should be enforced only if the employer's interests need protection beyond what the garden leave already gave. The restraint of trade guide explains how courts decide whether a restraint is reasonable.

Worked example

This example is illustrative. Pieter is a key account manager at a Cape Town software company, earning R65 000 a month with a one-month notice period. On 2 June he resigns to join a competitor. On 4 June his new employer withdraws the offer. Pieter emails the managing director the same day asking to withdraw his resignation. She replies that the company has already started recruiting and does not consent. His resignation stands, and his employment ends on 2 July. He has no claim, because the resignation was his own.

Change the facts: suppose instead the new job remains in place, and the company places Pieter on garden leave for the month under a clause in his contract. He must stay at home, is paid his full R65 000 and may not start with the competitor until 3 July. If his contract also has a six-month restraint, a court deciding whether that restraint is reasonable may take the month of garden leave into account.

What to do

1. Before resigning, sleep on it, and use a clear written letter such as the resignation letter template.
2. If you change your mind, ask to withdraw the resignation in writing immediately, addressed to someone with authority.
3. Insist on written confirmation that the withdrawal is accepted and your service is unbroken.
4. If you resigned because of the employer's conduct or under an ultimatum, write down what happened and refer a dispute to the CCMA within 30 days.
5. If you are placed on garden leave, check your contract, keep receiving your full pay and do not start the new job early.
6. If your employer ends your employment early without paying your notice, demand the notice pay in writing.