Resignation: It cannot be presumed

Resignation cannot be presumed. A resignation is only valid if the employee clearly and unequivocally expresses their intention to terminate the employment contract. An employee’s resignation may be effected by a simple verbal statement.

Resignation is subject to a specific procedure.

You cannot infer from an employee’s behaviour alone that they wish to resign. For an employee’s departure to be regarded as a resignation, they must have expressed a clear and unequivocal intention to leave the company.

If you have not heard from an employee, you cannot interpret this unauthorised absence as evidence of a clear and unequivocal intention to resign!

An employee’s unauthorised absence and silence do not allow you to assume that they are resigning.

If you classify this situation as a resignation, the courts may regard it as a dismissal without real and serious cause. You will therefore be ordered to pay compensation.

You must take action. Firstly, you must serve the employee with a formal notice requiring them to justify their absence or return to work, whilst warning them that disciplinary action may be taken against them if they fail to respond.

If there is no response, you must take the necessary steps in response to the unauthorised absence and dismiss the employee if you deem this measure necessary.

However, if you are unable to locate the employee, draw up the relevant documents and send them by registered post with acknowledgement of receipt to the address stated in their employment contract.

If you wish to terminate the contract, you must decide to dismiss the employee on genuine and serious grounds and follow the standard procedure: issuing a summons, holding a preliminary interview, and serving notice of dismissal.

Please note that the employee’s absence from the preliminary interview has no bearing on the continuation of the dismissal procedure.