1. If an employee resigns, he/she is required to work out either the contractual notice period or the minimum notice periods set out in the Basic Conditions of Employment Act (BCEA.)

2. The employer may elect to pay an employee in lieu of notice. The parties may also agree in writing that the employee will not be paid for not working out the notice period if, for example, the employee wants to leave earlier than the end of that period.

3. Sometimes employees resigning with immediate effect. Although resignation is a unilateral act that requires no acceptance by the employer to be effective, summary resignation, and the refusal to work out a notice period, is a breach of contract or a breach of the provisions of the BCEA.

4. The employer may elect either to accept the breach and cancel the employment agreement and, if applicable, claim damages arising from the breach of contract, or hold the employee to the contract (or BCEA provisions) and require the employee to work out the notice period.

5. If a disciplinary hearing had been scheduled prior to a resignation on notice, the employer can still proceed with the hearing because the employee remains employed, and subject to discipline, until termination of the notice period but the employer and employee can agree in writing that the pending disciplinary hearing will be cancelled.

6. If an employee is resigning with immediate effect, in the face of a pending disciplinary hearing, and the employer elects to hold him/her to the contractual or statutory notice period, the employer will be entitled to proceed with a pending disciplinary hearing and an employee who refuses to attend such a hearing, does so at their peril.

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za