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In Mahlophe v ETA College – (2021) 30 CCMA 7.1, term ‘implied resignation’ was developed. Here are the facts of the case so that you can learn more about it.

The employee, a sports management lecturer at the Bloemfontein campus, decided to leave for Cape Town on 27 March 2020 in anticipation of the Covid-19 Lockdown period. The employee did not communicate to her employer that she was in Cape Town.

On approximately 13 May 2020, the employer and employee made contact. At that time, the employer had employed a temporary lecturer in the place of the employee due to communication issues between them. On 13 May 2020, the employee could not access the teaching portal as the temporary lecturer had been employed, who was using the portal to facilitate online learning.

The employee took the non-access of the teaching portal as a sign that she had been suspended. On the same day, the Regional Director of the employer stated that the employee needed only return to work when the lockdown was over.
This was due to the difficulty in communication and connectivity the employer had with the employee after attempting to rectify the connectivity issues and even offering to pay for the employee’s return to Bloemfontein.

On 15 May 2020, the employee received a TERS UIF payment, which she assumed was a sign of her dismissal.

On 8 June 2020, the employer sent an email to the employee stating that she should report for duty on 10 June.
Further unanswered instructions to report for duty were sent via email on 18 June 2020 and 22 June 2020.
Due to the last correspondence not being answered, the employer assumed that the employee no longer wanted to work for them.

The employee referred the matter to the CCMA, where WhatsApp messages, various documentation and the UIF payment were given as evidence.

The employee reiterated that she assumed she had been dismissed as she had received the TERS/UIF payment.
The CCMA noted that the employee had not acknowledged anything with regards to the employer’s communication to report for duty from 8 June 2020.

The Regional Director of the employer provided evidence that the employee had been advised only to return to work when the lockdown restrictions were lifted, that there was difficulty in contacting the employee (which was the reason for employing a temporary lecturer) and that the payment that was paid to the employee as part of a TERS payment that the employee received as part of the Covid-19 relief scheme.

The Regional Director further stated that when contact was made, after explaining the condition upon which the employee would return to work, the employee did not enquire about her employment status and there was no notice of dismissal.

Because the employee had not responded to the employer’s call to report for duty, the employer argued that the employee had not been dismissed. The employer showed that the last correspondence had not been acknowledged by the employee and, by failing to do so, the employer would assume that the employer had no intention of resuming employment.

The CCMA found no credibility in the assumption of the employee that she had been dismissed or suspended and found that the employee understood what a TERS payment was. The CCMA also found no reason why the employee had failed to report for duty, after being requested numerous times to do so.

Due to the plausible arguments and evidence brought by the employer, the CCMA determined that the employee had no intention of honouring the employment contract and had abandoned it.

The finding in Mnguni v CCMA and others [2015] ZALC JHB227 was referred to, where it was stated that a resignation can be done verbally, in writing or implicitly. The question came down to if a reasonable person would have come to the conclusion that, based on the conduct shown by the employee, the employee no longer had the intention to fulfil their part of the contract.

The CCMA found it reasonable under the circumstances that the employee showed a clear and unequivocal intention not to return to work and that the employer was correct in assuming implied resignation. It was also stated that implied resignation did not amount to dismissal.

The application for reinstatement and backpay was dismissed.

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