The Basic Conditions of Employment Act (BCEA) stipulates that an employment contract can only be terminated on notice of not less than:
- One week , if the employee works for six months or less;
- Two weeks, if the employee works for more than six months, but not more than one year, and
- Four weeks if the employee-
- Works for one year or more; or
- Is a farm worker or domestic worker who works for more than six months
Does the employee pay?
It happens often these days that the employees end their employment contracts within 24 hours. This leaves the employer stranded without and employee to do the work the employer need and the employee is in breach of contract.
How legal is it for an employee to walk out with 24 hours’ notice?
The answer is that it is totally illegal. Nowhere in the BCEA does it say an employee can terminated his employment contract on 24 hours’ notice. So the employer must handle this as a breach of contract.
Payment on termination is regulated by the Basic Conditions of Employment Act, 1997 (No.75 of 1997) Chapter 5: Termination of employment. This section does not apply to employees who work less than 24 hours per month.
Notice of termination of a contract of employment given by an employer must not be given during any period of leave to which the employee is entitled in terms of chapter 3. Notice may not run concurrently with any period of leave to which the employee is entitled in terms of Chapter three, except sick leave.
Therefore, an employer may not give notice during any leave period, including sick leave, normal leave, family responsibility leave or maternity leave.
A notice period may also not run during normal, family responsibility or maternity leave, regardless whether the employee resigned or not. However, notice may run concurrently with sick leave, if the employee gave notice (resignation). If the employee therefore becomes sick during the notice period, after he resigned, the notice period will continue running.
If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and the employee agree otherwise.
What does this mean for the employer?
In order to protect itself from this, the employer must cover itself in its employment contracts. It would be advisable to include a clause that says, if an employee terminates the contract without giving the proper notice, the employer will deduct an amount equal to the period of notice the employee did not give from the final payment due to him. By including this in the employment contracts, it becomes part of the agreement between employer and the employee. It also becomes a condition of employment, which means the employee is legally bound to follow this, and if he does not, the employer can deduct the amount.
For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959