Can an Employer Reject an Employee’s Resignation?
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[1]”
“…[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 Ltd[2]Afreh 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[3], 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[4], 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.
[1][1977] Vol. IX No. 2 RGL 102-130
[2][1999-2000] 2 GLR 807 at page 831
Samuel Alesu-Dordzi is an Editor of the Ghana Law Hub.
Good job Samuel . This was very educational.
…. i am a senior typist at a public university. i am will be be 60 years in January,2019. The university official send off party and package will be given in September 2019. I want to resign in March 2019 . Given my length of service and in line with the practice of the university I am entitled to a double door fridge and three months basic salary
Can the university say they wont give me these entitlements because i did not wait till September before leaving their employ
Please advise me.
I was granted study leave with pay when I was to serve one more year to apply for promotion.
While on the study leave I applied for promotion. I was replied that persons on study leave were not eligible for promotion . On the completion of my course of studies, and having reported at the office there was an advert for promotion. I again applied for the promotion. I was replied that since I have just returned from study leave, I need to serve for a minimum of six months before being eligible for promotion. I served for those six months and then applied for promotion again. When my promotion letter came, I have been placed on the first step of the next salary scale. Meanwhile I have been at the maximum salary scale for three years. I petitioned the Registrar, and he asked the Personnel Registrar to reply that I was appropriately placed, thus I was worse off salary wise.
I was transferred to the Directorate of Health Services in 2014.The practice in university has been that those servicing Directors and analogous grades are paid a certain percentage of their basic salary as allowance. I applied for same and was denied, despite the Registrar and the Deputy Registrar in charge of Human Resource supporting the giving of the allowance to me.
The Deputy Registrar in charge of Human Resource wrote to the Finance Officer that following a meeting Personnel Registrars of all public universities attended at the instance of Vice Chancellors Ghana, staff working full time at all University clinics and hospitals were to be paid some allowance. I was not paid that allowance rightfully due me, despite my making representations to the Finance Office(r) and the Registrar
When as a result of a court case the Finance Officer was asked to step aside, We (all those of us affected by the unilateral decision of the then stepped aside finance officer) wrote to the Registrar ( A New Registrar and a Lawyer) with all our supporting documents. WE started being paid that allowance but without back pay or arrears.
Then I was transferred to another office. I was to report at that new office in three months time. I was therefore not entitled to that allowance from the day I report at my new station, but the Payroll Officer stopped paying me the allowance, immediately he got his copy of my transfer letter.
When I was transferred from the Directorate of health Services, a Senior Assistant Registrar and a Senior Administrative Assistant were posted to replace me. I have done the work at the Directorate of Health Services ALONE, AND I AM WONDERING why TWO persons- a Senior Assistant Registrar and a Senior Administrative Assistant- were to replace me alone. It can be surmise that I was all along doing the work of at worse an Assistant Registrar