REFRESHER ON RESIGNATIONS: What are the practical mechanics of notice periods in South Africa?

Resignations have featured in several SA 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 BCEA on Notice Periods

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

1. one week, if the employee has been employed for six months or less;
2. two weeks, if the employee has been employed for more than six months but not more than one year;
3. four weeks, if the employee–
4. i) has been employed for one year or more; or
   ii) is a farm worker or domestic workerwho has been employed for more than six months.

Q’s & A’s for South African Labour Law on Resignations & Notice Periods:

• Can the notice period be shorter?
  No.The minimum notice period for resignation 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 BCEA only prescribes minimum conditions of work. The parties are free to agree improved conditions. Once they agree, they are bound by the longer employment notice period. The employer can’t rely on a shorter period in the BCEA 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 BCEA 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 employment 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 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 of termination be given?

Section 37 (5) of the BCEA says –

Notice of termination of a contract of employment given by an employer must–

1. not be given during any period of leaveto which the employee is entitled in terms of the Act; and
2. not run concurrently with any period of leaveto which the employee is entitled in terms of the Act, except sick leave.

This means an employer may not give notice of termination –

1. While the employee is off on sick leave, annual leave, maternity leave or family responsibility leave.
2. 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?
  Section 20 (5) (b) of the Act prohibits an employer from requiring or allowing an employee to take annual leave during a notice period.
• Can an employee resign while on maternity leave?
  The notice period will run from the first day after the paid period of maternity leave ends. This is because the notice period can’t run concurrently with the paid maternity leave

• 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 (i.e., resignation “with immediate effect”) 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.
• How long does an employer have to make final pay after resignation?
  The final pay must be made on the same day it would have been paid if there was no resignation. So if the employee resigns on 1 months’ notice – the employer must pay the salary for the notice month on the usual payday at the end of the month.

• 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 for resignation 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]
• Can an employee resign with immediate effect whilst suspended?
  No. The employee would still have to give contractual notice. A resignation “with immediate effect” is a breach of the employment contract. Even though the employee is suspended from working, the contract of employment would terminate at the end of the notice period. The employer is still entitled to proceed with disciplinary action against the suspended employee during the notice period.
• Can an employee resign with immediate effect while on probation?
  The answer is the same as previous one. The only difference is that the notice period during probation might be shorter than the notice period for a permanent employee.

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.

Deale Attorneys is a specialist labour law firm in South Africa. We assist employers with all kinds of employment contracts and policies and procedures to comply with the law and improve operations. For labour law advice and services concerning notice periods and resignations, contact us today.

PATRICK DEALE
labour lawyer & mediator

DEALE ATTORNEYS
Tel: 083 375 8771
Email: [email protected]
Web: deale.co.za
Skype: patrick.deale

Source: Article in SA Labour Law