There are prescribed periods of notice that each employee must give when they terminate their employment. These periods are governed by the Basic Conditions of Employment Act (BCEA) or applicable Main Collective Agreement from a Bargaining Council which applies to the Industry or Sectoral Determination. Each Bargaining Council also has their own notice periods which must be complied with in that specific sector. For the purposes of this article, we will work with the BCEA but the principle is applicable to each Bargaining Council as prescribed.
The notice periods for the BCEA are as follows:
- 0 – 6 months: 1 week notice.
- 6 – 12 months: 2 weeks notice
- 1 year <: 4 weeks notice.
In normal circumstances, an employer can require the employee to work the full notice period after which they will be paid on the last day of notice or on a date agreed between the employer and employee. Alternatively, the employer can reach an agreement with the employee where the employee is then not required to work a notice period, but the employer still pays the employee until the end of the notice period.
What if the employee terminates their employment and does not follow the prescribed termination dates? 2 scenarios arise here:
On 1 August 2018 the employee formally tenders their resignation. The employee indicates that their notice period will be from 1 December to 31 December 2018.
An employee is allowed to do this and their notice period will then start on 1 December and end on 31 December. The question is whether the employer can refuse such tender and force the employee to immediately start their notice period. The answer to this is no, the employer will have to follow the intention of the employee. That means if the employer tells the employee to only give 4 week notice, the employer will still have to pay that employee until 31 December 2018. The employee will also be entitled to accumulated leave.
An employee formally tenders their resignation. The employee informs the employer that their resignation is with immediate effect.
The employee clearly does not comply with the termination periods as set out in the law and therefore the employer will only pay the employee pro rata until the day they stop working. If they only work a week into the notice period and then leaves, the employer will only be liable to pay for 1 week of the employee’s notice. Again the same principle will apply to the leave pay due to the employee.
It would be advisable that, should an employee try and resign with immediate effect, the employer explain the consequences of such actions to them. This may avoid the employee taking further action against you as the employer because they feel that you are not paying them what they are entitled to.
If the employee resigns with immediate effect they are in breach of contract. The employer’s remedy in this instance will be to institute a civil claim for damages incurred by the employer against the employee because of the breach by the employee. To institute such an action you will contact a civil attorney to assist as such a claim is not a labour issue.
Section 34 of the BCEA prohibits deductions from an employee’s salary without the written consent of that employee. It must, however, be considered as to what would constitute an agreement. Such an agreement may be included in the contract of employment or a separate agreement can be entered into with the employee in order to avoid having the civil courts as the only recourse. It is very important that such an agreement should indicate that the employee gives their express consent for such a deduction or withholding of payment.
ABOUT THE AUTHOR
JG du Plessis obtained his LLB degree from the University of North West in 2011. He was admitted as an Attorney of the High Court of South Africa in February 2014. He is currently a Legal Advisor of SEESA Labour at our Head Office in Pretoria and has been with SEESA since February 2017.