Koo submits his resignation letter to his employer. His employer takes a hard look at the letter. He shrugs his shoulders and sends an email – “koo, your resignation has been rejected because clause 200.1 of your employment contract requires that you reach a particular sales target before you can resign.”
The above scenario raises two issues. The first is whether an employer can reject an employee’s resignation? The second question is whether an employer can insert a contractual clause in an employment agreement which operates as a clog on the employee’s right to resign at will?
For starters, the relationship between an employer and employee can be terminated at any time. The courts have on a number of occasions pointed out that an employment contract is not a contract of slavery. This means that the employment relationship can be terminated at any time. And secondly, an employment contract cannot be specifically enforced. As Professor Kludze pointed out in “Developments in Specific Performance”
“…[I]f an employee is entitled to a decree of specific performance against his employer to keep him in his employment, there would also be a mutual right in the employer to obtain the same decree ordering an employee to remain in the service of his employer against the employee’s wishes. It is the fear of this, that by the use of the decree of specific performance an employee may be perpetually enjoined to remain in an employment against his wish, that had led the courts to insist that this should not convert a contract of service into a contract of slavery. For it certainly savours of slavery if an employee, by accepting a position for a fixed period of say 40 years, would not be at liberty to resign even if there are better prospects for him elsewhere.”
Against this background, it is clear that an employee does not need the consent of his employer to resign. In Akuffo & Ors v Volta Aluminium Co LtdAfreh JA (as he then was) defined resignation as a unilateral act in the sense that the employee may decide to leave the company without consulting the company or the union decide.”
In Yesufu v. Gov., Edo State, the Nigerian Supreme Court had to determine whether a resignation letter had to be accepted before it became effective. An excerpt of the Appellant’s letter indicated:
“Since I have no intention to embarrass you or the Government in this or any other matter, I have the honour hereby to tender my resignation as Pro-Chancellor and Chairman of the Governing Council of Edo State University. The law requires me to give six months notice of such resignation, but Your Excellency indicated that you would waive the requirement and I hereby so request.”
The Appellant turned around to argue that his resignation was not effective. He stressed that the letter of resignation was an offer to resign which had no effect until the legal procedures for effecting his resignation were complied with. The Respondents argued that the letter was a letter of resignation and not an offer to resign. The Court dismissed the contention of the Appellant. In another Nigerian, case Benson v A. Ontiri, the Supreme Court held that “There is absolute power to resign and no discretion to refuse to accept notice.”
Even though most employment contracts contain provisions on notice periods, the failure to adhere to the notice provision contained in an employment contract does not affect the validity of an employee’s resignation. This failure only gives the employer the right to sue the employee for a breach of contract. In the alternative, the employer may choose to waive the breach and let sleeping dogs lie – since the requirement of notice is usually for the benefit of the employer. Another way an employee can get around the notice period requirements is for the employee to give to the employer what the employer would have paid her if she had not resigned. This is referred to as Payment in Lieu of Notice (PILON).
From the above discussions, it is clear that an employer cannot reject the resignation of an employee. Not even the failure of an employee to meet the notice requirement contained in the agreement can take away the employees right to resign. The breach of notice requirement and indeed any other contractual clog may entitle the employer to sue the employee for a breach of the employment contract.