The power of words: How one email changed a labour dispute

In the matter of Lorren v Raydian, the applicant approached the Labour Court alleging that her dismissal by the respondent was procedurally and substantively unfair. The respondent raised a special plea, arguing that the applicant had resigned with immediate effect during her notice period, thereby terminating her employment before the official dismissal date.

Key facts

The applicant was retrenched following consultations under section 189 of the LRA, with her notice period set to run from 1 to 31 August 2023.

On 18 August 2023, the applicant sent an email expressing dissatisfaction with the retrenchment process and stated she was revoking her notice period, requesting payment for days worked and her retrenchment package.

She also indicated she would return company property and was not in a mental state to continue working.

Legal findings

The Court found that Lorren’s conduct and email clearly demonstrated a subjective intention to resign, effectively terminating her employment on 18 August 2023.

According to section 190(d) of the LRA, the date of dismissal is either the expiry of the notice period or the earlier date when the employee ceases work and is paid.

The Court held that the applicant had resigned before the dismissal date, and thus her claim of unfair dismissal could not stand.

Legal implications

Resignation during notice period

• The Court reaffirmed that resignation is a unilateral act by the employee, requiring only a clear and unambiguous intention to terminate the employment relationship.
• The Applicant’s email on 18 August 2023 was interpreted as a revocation of her notice period, effectively amounting to a resignation.
• This means that even if an employee is under a retrenchment notice, they can still resign before the notice period ends, which may affect their entitlement to certain claims.

Date of dismissal vs. date of resignation

• According to Section 190(d) of the LRA, the date of dismissal is either:
  • The expiry of the notice period, or
  • An earlier date if the employee stops working and is paid all outstanding dues.
• The Applicant’s last working day was 18 August 2023, not 31 August 2023, in line with the retrenchment notice. This earlier termination meant that the Applicant was not dismissed, but had resigned, nullifying her claim of unfair dismissal.

Procedural fairness in retrenchment

• The Applicant alleged that the retrenchment process was a “smoke screen,” implying procedural unfairness under Section 189 of the LRA.
• However, the Court did not evaluate the fairness of the retrenchment process in depth because her resignation precluded the need to do so.
• This highlights that procedural challenges to retrenchment may be moot if the employee resigns before the dismissal takes effect.

Key takeaways for employers and employees

Employers must carefully document and interpret employee communications during notice periods, especially in retrenchment contexts.

Employees should be aware that resigning during a notice period may undermine claims of unfair dismissal, even if the retrenchment process was flawed.

Both parties should understand that legal definitions of dismissal and resignation are nuanced, and timing plays a critical role.

For advice or more information, please contact Riona Kalua, head of our Labour and Employment team.