Termination of the employment relationship can take place in different ways. A few to mention may be in the event of a death of an employee, by the employee’s dismissal, when an employee retires, by mutual agreement or on the instance of an employee. If an employee resigns, the employee would have to provide an advanced notice period to the employer.
The notice period is, however, dependent on several factors:
First, if there is no contract of employment between the employer and employee indicating any notice period, then the notice period in terms of the relevant Labour legislation ought to be applied. The Basic Conditions of Employment Act (BCEA) provides that employers and employees covered by the BCEA must give, in writing:
- A week’s notice if the employee has up to six months’ service.
- Two weeks’ notice if the employee has between six months and twelve months’ service;
- Four weeks’ notice if the employee has 12 months’ service or longer.
Second, a contract of employment may provide longer notice periods than those prescribed by legislation as long as the employee is not required to give more notice than the employer.
A challenge employers face is that employees leave their place of employment without serving their full required notice period or a portion of their notice. This may cause operational difficulties for the employer who does not have sufficient time to arrange for an alternate to assist with the duties left by the former employee. The employer would have to object to the absence or the shortness of the notice period being worked; else, he would be required to pay the employee out in lieu of the unworked portion of the notice.
In the event of an employee leaving without working their required notice, the employer can either:
- Apply to a court to issue an urgent order of specific performance. This is an order requiring the employee to work in the required notice;
- Apply to the court for damages caused by the employee’s failure to work the notice.
However, should the employer sue for damages, they would have to prove specific losses attached to the employee’s breach of the notice agreement.
In the case of SAMRO ltd v Mphatsoe (2009, CLL Vol 18 No 9 page 82), the employee failed to work the notice period the employer believed he was contractually required to work. The employer sued Mphatsoe for damages equivalent to the earnings that the employee would have been paid for the period of the unworked notice. The court could not award any damages as the employer could not prove that he had suffered any specific loss.
It is clear that it is problematic for employers to force employees to work their agreed or statutory notice, and for the employer to claim any damages, he must prove and identify the loss suffered.
Want to know more about Notice Periods? Contact your nearest Labour Legal Advisor for expert advice. Alternatively, leave your details on our website, and a SEESA representative will contact you.
About The Author:
Faheem Mansoor started his career at SEESA as a legal assistant in 2015 at the Durban branch, gaining vast knowledge in Labour Law over the years and was promoted to a Legal Advisor in 2021. He obtained his LLB degree at the University of South Africa in 2021.
Resources:
- SAMRO ltd v Mphatsoe (2009, CLL Vol 18 No 9 page 82);
Basic Conditions of Employment Act 75 of 1997.