My employee wants to leave before their notice period has lapsed – what now?

My employee wants to leave before their notice period has lapsed – what now?
January 18, 2019 Chante Hobbs

Employers are often faced with the issue of employees not giving sufficient notice as prescribed, which do not give employers sufficient time to find a proper replacement and/or to provide the necessary training for the replacement or in some instances lead to a loss of income to the employer.

Section 37 of the Basic Conditions of Employment Act (BCEA) regulates notice periods applicable on both the employer and employee and have the following notice periods in place;

  1. 1 week, if the employee has been employed for 6 months or less;
  2. 2 weeks, if the employee has been employed for more than 6 months but not more than 1 year;
  3. 4 weeks, if the employee-
  4. has been employed for 1 year or more; or
  5. is a farm or domestic worker who has been employed for more than 6 months.

Section 37 of the BCEA, however, does not indicate what the employer can do if the above notice periods are not given and therefore, it is advisable that employers should make provision for this in their contracts of employment. The employer can add a clause in their contract of employment which indicates that should the employee fail to give sufficient notice of termination of services, the employer would be entitled to withhold an amount of salary/ wage/ leave pay or any money which is due by the employer to the employee, equal to the period of notice the employee was supposed to have served.

Employers can also take note that nothing prevents them from instituting a civil action against an employee for damages incurred by the employer due to the short notice given.

ABOUT THE AUTHOR

Ruan Vlok obtained his L.L.B degree from the University of the Free State and was admitted as an Attorney of the High Court of South Africa in April 2015. He is currently a legal advisor in the Labour and BEE department at SEESA Bloemfontein and has been with SEESA since April 2015.

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