Patrick Deale - A Refresher On Resignations
Patrick Deale - A Refresher On Resignations

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Patrick Deale - A Refresher On Resignations


What are the practical mechanics of notice periods?
Resignations have featured in several labour court judgements and CCMA awards recently. They reveal quite a lot of misconceptions about how the mechanics of resignations are supposed to work. So this is a "back to basics" refresher to remind us how to deal with resignations.

The starting point is to look at the notice periods prescribed in Section 37 of the Basic Conditions of Employment Act (the Act). They are as follows -

One week, if the employee has been employed for six months or less;
a) Two weeks, if the employee has been employed for more than six months but not more than one year;
b) Four weeks, if the employee--
c) has been employed for one year or more; or
d) is a farm worker or domestic worker who has been employed for more than six months.

Qs & As
Can the notice period be shorter?

No. The minimum period is one week.

Can the notice period be longer?
Yes. The employer and the employee can agree to a longer notice period in their employment contract. This is because the Act only prescribes minimum conditions of work. The parties are free to agree improved conditions. Once they agree, they are bound by the longer notice. The employer can't rely on a shorter period in the Act if it later does not want to honour the longer agreed period.

Does an employer have to accept a request to withdraw a resignation?
No. Section 37 (4) (a) of the Act says that a notice of termination of the employment relationship (includes a resignation) and must be done in writing. The resignation is a unilateral act by the employee and does not need the employer's acceptance. The employment relationship is terminated immediately the written resignation is given and received.

Does the employee have to work during the notice period?
Yes. The Act says an employer must pay an employee's salary and benefits for the notice period. He or she must also work for the notice period if the employer so requires. But the employer has the discretion to pay the employee in lieu of notice and require him or her to exit before the end of the notice period.

Does the employer still have to pay the notice pay if the employee refuses to work for the notice period?
No. If the employee does not want to serve the serve the full notice period, the employer does not have to pay him or her for rest of the notice period. In theory, the employer has the right to claim the value of the employee's salary for any period of notice not served in the civil court. But this seldom happens because it's a time-consuming and costly exercise.

When can notice be given?
Section 37 (5) of the Act says - Notice of termination of a contract of employment given by an employer must--
a) not be given during any period of leave to which the employee is entitled in terms of the Act; and
b) not run concurrently with any period of leave to which the employee is entitled in terms of the Act, except sick leave.
This means an employer may not give notice of termination -
  • While the employee is off on sick leave, annual leave, maternity leave or family responsibility leave.
  • Just before the employee goes on annual leave so that the notice period runs concurrently with the employee's annual leave.
Can an employee take annual leave during a notice period?
No. Section 20 (5) (b) of the Act prohibits an employer from requiring or allowing an employee to take annual leave during a period of notice.

Can an employer withhold the employee's final salary or accumulated leave pay if the employee refuses to work for the notice period?
No. Section 34 of the Act prohibits deductions from an employee's salary without the written consent of that employee. This means the employer must still pay the employee even though he or she failed to serve notice and the employer suffered damages. Except that the employer can withhold a pro-rata portion of the final salary for any period in which the employee does not work during the notice period.

What is a calendar months' notice?
The term "calendar month" may be interpreted in two ways: either as a month as it appears on the calendar, (1 January to 31 January) or a month reckoned in terms of one day in a particular month until the corresponding day of the next month (4 March to 4 April). Both interpretations are possible.*1 For this reason, contracts of employment should specify what a "calendar months' notice" means.

Does an employer have to accept a longer period of notice by the employee?
No. The employer only has to accept the period of notice agreed in the contract of employment. If a contract specifies one months' notice and the employee gives three months' notice, the contract would terminate after one month not after three months.*2

TIP: Employers may consider reviewing their contracts of employment to align with the mechanics of how the law on resignations is applied in practice. This would help to remove any misconceptions which could prove costly when employees tender their resignations. 

*1 Interpretation of Statutes (Juta & Co. Ltd, first edition), Professor G.E. Devenish
*2 Uthingo Management (Pty) Ltd v Shear
NO & others (2009) 18 LC 7.1.1, reported in Butterworth's [2009] 6 BLLR 590 (LC).
Source: Article in SA Labour Guide

Tel: 083 375 8771
Skype: patrick.deale

Patrick Deale - A Refresher On Resignations

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