An employer has no right to reject the
resignation of its employee, for whatever reason. The law is that a notice of
resignation of an appointment becomes effective and valid the moment it is
received by the person or authority to whom it is addressed. This is because
there is absolute power to resign and no discretion to refuse to accept; and it
is not necessary for the person to whom the notice of resignation is addressed
to reply that the resignation is accepted.
resignation of its employee, for whatever reason. The law is that a notice of
resignation of an appointment becomes effective and valid the moment it is
received by the person or authority to whom it is addressed. This is because
there is absolute power to resign and no discretion to refuse to accept; and it
is not necessary for the person to whom the notice of resignation is addressed
to reply that the resignation is accepted.
In the cases of Taduggoronno v.
Gotom [2002] 4 NWLR (Pt. 757) 453 andYesufu v. Gov. Edo
State [2001] 13 NWLR (Pt. 731) 517, the courts held that it is not
open to the employer for whatsoever reason to refuse to accept the resignation
of the employee, for the employee has an absolute power to resign and the
employer has no discretion to refuse to accept the resignation. See also the
case of Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1.
Gotom [2002] 4 NWLR (Pt. 757) 453 andYesufu v. Gov. Edo
State [2001] 13 NWLR (Pt. 731) 517, the courts held that it is not
open to the employer for whatsoever reason to refuse to accept the resignation
of the employee, for the employee has an absolute power to resign and the
employer has no discretion to refuse to accept the resignation. See also the
case of Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1.
It is not uncommon for Employee Handbooks
to contain a clause that confers on the employer the right not to accept the
resignation of an employee on grounds such as ‘on-going investigation’ and where
the employee seeking to resign is under a contractual bond, the terms of which
he is yet to finish serving. The courts have held such provisions to be
unlawful and unenforceable. An employee has the right to resign with immediate
effect, and to reject his rejection is tantamount to forced labour, and also
against the time-honour labour law principle that an employer cannot force
himself on an unwilling employee.
to contain a clause that confers on the employer the right not to accept the
resignation of an employee on grounds such as ‘on-going investigation’ and where
the employee seeking to resign is under a contractual bond, the terms of which
he is yet to finish serving. The courts have held such provisions to be
unlawful and unenforceable. An employee has the right to resign with immediate
effect, and to reject his rejection is tantamount to forced labour, and also
against the time-honour labour law principle that an employer cannot force
himself on an unwilling employee.
It is also common to find in the
termination clause of some employment contracts that only the employer may make
a payment in lieu of notice, while the employee is mandatorily required to give
notice. The remedy available to the employer, where the employee, in such a
case, resigns without notice would likely be damages and certainly not specific
performance. In other words, such resignation would be treated as wrongful but
not null and void.
termination clause of some employment contracts that only the employer may make
a payment in lieu of notice, while the employee is mandatorily required to give
notice. The remedy available to the employer, where the employee, in such a
case, resigns without notice would likely be damages and certainly not specific
performance. In other words, such resignation would be treated as wrongful but
not null and void.
In WAEC v. Oshionebo [2006]
12 NWLR (Pt. 994) 258, it was held that a notice of resignation is effective
not from the date of the letter, or from the date of any purported acceptance,
but from the date on which the letter was received by the employer or his
agent; and that tendering of a letter of resignation by an employee carries
with it the right to leave the service automatically without any benefit subject
to the employee paying any of his indebtedness to his employer.
12 NWLR (Pt. 994) 258, it was held that a notice of resignation is effective
not from the date of the letter, or from the date of any purported acceptance,
but from the date on which the letter was received by the employer or his
agent; and that tendering of a letter of resignation by an employee carries
with it the right to leave the service automatically without any benefit subject
to the employee paying any of his indebtedness to his employer.
Thus, once an employee tenders his
resignation, he ceases henceforth to be an employee, regardless of a rejection
of the resignation by the employer. The employee’s resignation would have
immediate effect even where he continues to come to work after his resignation
is tendered.
resignation, he ceases henceforth to be an employee, regardless of a rejection
of the resignation by the employer. The employee’s resignation would have
immediate effect even where he continues to come to work after his resignation
is tendered.
Rejection of retirement
The distinction is however, made in cases
of retirement. A letter of retirement does not necessarily take effect from the
date that it is received by the employer. The case ofWAEC v. Oshionebo [2006]
12 NWLR (Pt. 994) 258 made a distinction between “resignation” and
“retirement” with different legal consequences. Resignation carries with it the
right to leave service immediately and automatically without any benefit
subject to the employee paying any of indebtedness to his employer. Retirement,
on the other hand does not confer such a right to leave service immediately and
automatically. A further legal consequence of retirement is provided for in OSHC
v. Shittu [1994] 1 NWLR (Pt. 321) 476, the court held that where
an employee gives notice of his voluntary retirement to his employer, and the
employer refuses to accept the notice, the position is that the employee is
still in the employer’s service. However, it is only the employee who can rely
on that notice in his favour and not the employer who rejected the notice. This
would be particularly relevant for the computation of terminal benefits. This
is because it has to be adjudged not only a deviation from “natural equity” but
also contrary to law for an employer who is guilty of the irregularity of
refusing a notice of voluntary retirement to turn around and benefit from that
irregularity.
of retirement. A letter of retirement does not necessarily take effect from the
date that it is received by the employer. The case ofWAEC v. Oshionebo [2006]
12 NWLR (Pt. 994) 258 made a distinction between “resignation” and
“retirement” with different legal consequences. Resignation carries with it the
right to leave service immediately and automatically without any benefit
subject to the employee paying any of indebtedness to his employer. Retirement,
on the other hand does not confer such a right to leave service immediately and
automatically. A further legal consequence of retirement is provided for in OSHC
v. Shittu [1994] 1 NWLR (Pt. 321) 476, the court held that where
an employee gives notice of his voluntary retirement to his employer, and the
employer refuses to accept the notice, the position is that the employee is
still in the employer’s service. However, it is only the employee who can rely
on that notice in his favour and not the employer who rejected the notice. This
would be particularly relevant for the computation of terminal benefits. This
is because it has to be adjudged not only a deviation from “natural equity” but
also contrary to law for an employer who is guilty of the irregularity of
refusing a notice of voluntary retirement to turn around and benefit from that
irregularity.
See also Osu v. PAN Ltd [2001]
13 NWLR (Pt. 731) 627, where the court held that the notice of retirement will
appropriately expire at the stipulated periods regardless of directives from
the employer that the employee should stop work before the date stipulated; as
such an employee remains a staff of the employer up to and including the last
day when the notice would have properly expired.
13 NWLR (Pt. 731) 627, where the court held that the notice of retirement will
appropriately expire at the stipulated periods regardless of directives from
the employer that the employee should stop work before the date stipulated; as
such an employee remains a staff of the employer up to and including the last
day when the notice would have properly expired.
Michael Dugeri
Corporate Commercial Lawyer at Austen-Peters & Co.
Ed’s Note – This article was first published here.