★Nutshell
On June 17, 2019, Mr. Liu joined a components manufacturing company in Shanghai as a project manager. After being employed, Mr. Liu felt too stressful for his project. On October 23, 2019, Mr. Liu sent a resignation to his leader through Wechat.
On November 20, 2019, after finished the work handover, the director of personnel told Mr. Liu that the company has approved his resignation. But the company would never give up investigating his mistake at work, even if he resigned. Mr. Liu said immediately that Wechat was not a formal way！He was very regretful about resigning on impulse and wanted to withdraw his resignation. The company rejected Mr. Liu’s application of withdrawal, and finished the formalities of dismissal.
Mr. Liu claimed to the labor arbitration to require the company to restore their labor relationship.
★Judgment
After the trial, the labor arbitration thinks that a labor should exercise his rights in the principle of good faith, not offence the employer’s right. Therefore, when a labor needs to withdraw his resignation, he should apply in time. If the employer has finished the rearrangement of personnel and work handover, the labor shall not withdraw his resignation.
In this case, since Mr. Liu has finished the work handover after resignation, and the company has finished the rearrangement of personnel, the company has gained a reliance interest in Liu’s application for resignation. So such withdrawal was invalid, and Mr. Liu has voluntarily resigned.
★Comment by Lawyer Tang
The central issue of this case is: is it available for the labor to withdraw his resignation for regret?
There are two different views in practice about whether the resignation could be withdrawn.
The first view is that the right for an employee to terminate his employment contract upon 30 days’ prior written notice to his Employer is given by the Article 37 of Labor Contract Law. And such right is a forming right, which means once it is proposed, it will take effect immediately. That is, when the labor’s resignation reached the employer, his declaration of intention has finished at the same time. Unless the company approved his withdrawal, he can’t withdraw his resignation.
The other view is that before the employer has finished the formalities of dismissal, the
consequence of the labor’s application for resignation is just a notice of cancellation, which means the resignation is not in effect at that time. For example, according to the Article 12 of Notice by Jiangsu Labor Dispute Arbitration Commission on Printing and Distributing the Summary of Jiangsu Labor Arbitration Seminar, since the resignation is not in legal effect before the end of “30 days’ prior”, the labor can withdraw his resignation. Otherwise, when the employer has finished the formalities of dismissal, the rearrangement of personnel or some other preparations which is difficult to be canceled, it should be regarded as an approval to the resignation, therefore the labor has no right to withdraw his resignation.
We tend to agree with the first view. It is easy to resign, but hard for life. We hope all labors could think carefully before applying for resignation, instead of acting on impulse.
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