Case name:
Sihlali, Mafika v SABC Ltd (LC – case number J700/08)

Legislation
Section 37: Basic Conditions of Employment Act 75 of 1997; and

Section 12: Electronic Communications and Transactions Act 25 of 2002

Area of law:
Labour Law: Valid Notice of Termination of Employment

Brief facts/summary:
This case involved a former SABC employee, (“the Applicant”) who sent an SMS to his employer stating that he “quit with immediate effect“. The Applicant alleged that he sent this SMS in anger after he heard that he had been suspended. Six weeks after sending this SMS, the Applicant attempted to withdraw the resignation by asserting that his contract of employment still subsisted in that he had not given notification of his termination in writing and the employer did not accept it.

The Court confirmed that notwithstanding Section 37 of the Basic Conditions of Employment Act 75 of 1997, the test for a valid resignation is whether the employee has through his words or conduct shown a clear and unambiguous intention not to continue with his contract of employment (Council for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18 (AD) and Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 795 (LAC)).

The Court held that an SMS constitutes communication in writing, in accordance with section 12 of the Electronic Communications and Transactions Act 25 of 2002. Furthermore, that the Applicant is bound to his resignation as it is a unilateral act which does not require the employer’s acceptance to be valid. Once it has come to the employer’s attention it cannot be withdrawn without the employer’s consent.

The Applicant’s SMS was clear and unequivocal. The Applicant did not allege that he was incapable of appreciating what he was doing, or the consequences of his actions. Therefore, the Applicant’s resignation by SMS constituted a valid resignation.

Importance/value:
Notwithstanding Section 37 of the Basic Conditions of Employment Act 75 of 1997 which provides that Notice of Termination of Employment be given in writing (which includes SMS’s), the words or conduct of an employee may amount to a valid resignation should it show a clear and unambiguous intention not to continue with his/her contract of employment.

WEBSITE DISCLAIMER: Save for the contents of this disclaimer, the content of this website is provided for general information purposes only and should not be construed as, and does not constitute, legal or other professional advice. To the extent that you wish to place reliance upon any information contained on this website, you do so totally at your own risk and we accept no responsibility for any loss or damage whatsoever, howsoever arising. In addition, the hyperlinks provided on this website are provided for convenience only. We make no representations or warranties whatsoever in respect of the accuracy, completeness and/or reliability of any information, opinions, data and/or content provided on such linked website, nor do we endorse or take any responsibility for the content of any such linked website.