Retraction of resignation


This is an interesting topic and it is certainly something worth sharing.

Before moving into the details, what is the normal practice of your company when it comes to resignation of an employee? Is it a must for the company to accept/decline a resignation in writing?

Well, what happens if an employee submits a resignation and before the company could accept it, the employee retracts the resignation and wants to continue in employment. (For illustration purposes, lets take it that the employer hates this employee and doesn’t want him back in employment anymore.) Is this allowed? Or should the company be bound to the retraction and to maintain the employer-employee relationship? More importantly, what happens if the employer chooses to ignore the retraction, will it give rise to a s.20 IRA1967 claim?

I have 1 simple case that answers this question. Judging on my research and the judgment of this case, I am of the opinion that this is one of the very few cases that focussed much on this issue of retracting a resignation.

In Percetakan Keselamatan Nasional Sdn Bhd v Jamaliah Md Yusoff [2001] 2 ILR 536, where Industrial Court of KL had to consider whther the claimant can withdraw her resignation before acceptance by the employer.

In deciding this case, the Court referred to Bainbridge v Smith [1889] 41 Ch. D 462 @ 474 whereby it was quoted:-

“Turning to the law, it is clear that the relationship of master and servant is essentially contractual. It is a created and continued with mutual consent. Just as the master cannot force the servant to continue to serve him, so also the servant cannot force his service upon the master”.

The honourable judge in his ground of judgment went further to quote with approval the decision of Jamala Prasad v. State of VO AIR [1954] All 638 which reads as follows:

“No question of withdrawal could then arise, his resignation having been already accepted. Even if his withdrawal of resignation application had been received before the resignation was accepted he could not claim an absolute right to withdraw that resignation. The resignation was unconditional and whether he could be permitted to withdraw that resignation is a matter within the discretion of the appointing authority.”

Voila! That would answer the question!

The next question deriving from the aforementioned quotes would be –> Is there really a need for the communication of acceptance in a resignation?

To sum this up, the answer to this is NO!

In Syed Aman Syed Hassan v. Mara Institute of Technology [1993] 1 CLJ 228, it was decided that the giving of a notice terminating a contractual employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot be withdrawn save by mutual consent.



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