Withdrawal of notice of termination of employment

Motivation to rescind a termination can sometimes be shared by both parties. However, since the employer has a relatively limited range of situations in which it can give notice, it will usually think this through beforehand. More often, therefore, such a request comes from employees. Either because another agreed job has not worked out, or the current employer has persuaded them financially or otherwise. The latter options are much easier to deal with because it is obvious that the employer will agree to the withdrawal of the notice.

By its nature, a dismissal is always a unilateral legal act. Whether it is co-signed by the other party, or whether the employee and employer agree that it is “for some reason” best for the employee to resign, it is never a “resignation by agreement” as legal laymen sometimes claim.

Example: Mr. John quit his job. As he was promised a new job in three months’ time, he worded his own notice in such a way that both employee and employer agreed on a three-month notice period. He had indeed agreed with his department head that there would probably be no problem in the three-month period and that he would check it out. However, the manager’s promise did not reach the human resources department, which in the meantime issued a tender for the position with a start date in two months and prepared all the paperwork for Mr Jan’s termination. The Director of Personnel did not want to accept any exceptions within the civil service and, moreover, had to respect the prescribed number of posts in the office. There was no will from the employer to rescind the termination and resubmit it a month later either, as from the perspective of the HR department it is better to give priority to new employees who plan to stay in the workplace.

Thus, although Mr Jan had envisaged a “termination by agreement”, his termination was in fact a unilateral act with which a two-month notice period is normally associated. This left Mr Jan without income for one month. It would have been possible to extend the notice period, but there would have had to be a genuine bilateral agreement, with both parties agreeing to the extension in writing.

Revocation of notice from the point of view of law

If you have already given your notice and then changed your mind, it mainly depends on how good you are with your employer and what work you have done for them so far. In other words, whether he will be happy to find a replacement for you or whether it will be in his favour to keep you. You cannot arbitrarily dispose of your notice in the sense of “withdrawing” it, as is sometimes said.

However, if you have already experienced a “don’t you want to change your mind?” reaction when you submit it, you are half out of luck.

It is possible to reverse the notice given and the Labour Code provides for this. According to the Labour Code, “a notice may be revoked only with the consent of the other party; both the revocation of the notice and the consent to its revocation must be in writing.”

Consent of the other party

Thus, for reasons of legal certainty, a notice of termination cannot be revoked unilaterally. In the above case, the other party has already started the selection process; if the situation is reversed, the employee may have already found a new job. Therefore, the cooperation of both parties is always required.

Written consent to the revocation

In informal relationships, the two parties may sometimes conceive of the revocation of a dismissal as a verbal agreement, possibly accompanied by a tearing up of the notice.

On the one hand, there have certainly been a number of such negotiations in practice without any major repercussions as neither party has challenged or disputed the validity or otherwise of the notice. In this context, most legal opinions agree that if the statutory form of revocation of termination is not fulfilled, but neither of the parties disputes it and the employment relationship is continued by both parties, then the employment relationship continues.

In general, however, such a procedure is certainly not to be recommended. The Labour Code expressly requires a written form and it is essential from a legal point of view to comply with it. You can never be absolutely sure that the other party will not suddenly find reason to consider the original notice valid.

A perhaps slightly far-fetched, but not entirely unrealistic, example might arise where, although the employer tore up the notice following a verbal retraction by the employee, he nevertheless found after a time that he had torn up a copy as a joke and had a valid original notice. In such a case, it would indeed remain a valid notice and not a retraction.

Form of revocation of notice

TheLabour Code does not go into detail in the case of revocation of a contract, except for the above-mentioned conditions of written form and the consent of the other party. The specific form and wording is then up to the will of both parties. One can imagine, for example:

• a unilateral written revocation of the termination of employment, which the employer signs with a note stating that he agrees to the revocation, which he signs and adds a valid date.
• the revocation shall take the form of a kind of contract, where both parties are identified at the head and then the will of one party to revoke the notice and the consent of the other party to it is formulated,
• the revocation may take the form of two separate written documents. The first includes a revocation of notice, dated, dated, signed and dated, with acknowledgement of service on the employer, and the second separate document expresses consent to the revocation of notice, again dated, dated, signed and dated, with acknowledgement of service on the employee and delivery of the consent to revocation.

Revocation of notice given during the probationary period

In our view, a termination given during the probationary period and its subsequent revocation would lead to a legally different situation from that described above.

During the probationary period, either party may give notice to the other party and the employment relationship will end upon service of notice. If one of the parties subsequently decided to withdraw the notice, a new contract would instead have to be concluded and a new employment relationship created. Again, however, if this procedure were not followed, the popular saying ‘where there is no plaintiff, there is no judge’ would apply. In other words, if no other course of action is challenged by either party, then it may work in practice.

Changing the contract of employment after notice is withdrawn

You may also be able to get your employment contract changed for the better after you have rescinded your notice. If your employer has promised you a pay rise, improved working conditions or a promotion in response to your notice, then you should not delay in making your resignation conditional on a change to your contract. Ideally, this should happen at the same time so that you can guarantee that the changes will actually happen. Otherwise, the employer may only benefit from the employee refusing to do other agreed work and continuing to promise a change in terms and conditions.