All employment contracts are subject to the Basic Conditions of Employment Act, Act No 75 of 1997 as amended.
If an employee has been employed for six months or less, then one week’s notice must be given by either the employee or the employer.
Furthermore, if an employee has been employed for more than six months, but not more than one year, then two weeks’ notice must be given by either party.
If an employee has been employed for one year or more, or is a farm worker or a domestic worker for more than six months, then the parties would have to give each other at least four weeks’ notice.
The parties cannot agree, either by way of a contract or orally, to make that notice period shorter than that required by the BCEA (Basic Conditions of Employment Act).
However, an employer may pay the notice pay instead of giving the employee notice and asking him/her to work.
It is more complicated if the employee wishes to terminate the employment relationship giving less time than that outlined by the BCEA.
What is clear is that the contract of employment, the letter of appointment, or the terms and conditions of employment may require a longer notice period, which is normally in favour of the employee. The terms and conditions contained in the BCEA may only be amended if it is deemed more favourable to the employee concerned.
For instance, if the contract of employment says either party must give 60 days’ notice as opposed to the 30 days, then that contract is valid.
If, however, the employee has been subjected to employment conditions which are intolerable, then that employee would have to try his/ her utmost to have those conditions reversed.
For instance, if the employee is being heavily discriminated against at work and the employee has raised a grievance but to no avail, then that employee may terminate by way of resignation with immediate effect.
This termination must be done in writing and should contain the reasons for the premature termination, and also refer to the fact that the working conditions have become intolerable. In those circumstances, the employee would be able to refer a dispute for damages against the employer at either the CCMA or a bargaining council.
In those circumstances, it is fair and reasonable for the employee to terminate without giving notice as contained in the BCEA and the contract of employment.
If, however, the employee wishes to terminate the employment relationship earlier than the requirements because the employee has found alternative employment, this can only be done by agreement with the current employer.
Should the current employer refuse to release the employee from the BCEA and/or the contract of employment, then the employee risks a possible claim for early termination. Should the employee go ahead without permission from the current employer, then the employee runs the risk of a court claim for either specific performance or for payment of damages to that erstwhile employer.
Our courts are normally reluctant in the employment relationship to grant specific performance. In other words, the courts are not keen to force people to stay in the employment when they don’t want to be there.
However, our courts will grant the employer a court order against the employee for damages if the employer can prove damages have been incurred. These damages may be because the employer had to employ someone at a higher salary or had to advertise the position and/or had to use an employment agency at a high cost.
In an interesting and thought-provoking Labour Court case handed down in Joburg on July 26, an employer issued a claim against an employee who had repudiated her contract of employment and gave less notice than the 60 days required in that contract.
The employer said the court action was urgent as the employee had already left and the employer said the employee had to come back to work in order to complete her duties. The court agreed that the application was urgent and convened to hear the employer’s application. In that instance, the judge was not convinced that it was absolutely necessary to force that ex-employee back to work.
The ex-employee had not been working long enough to justify the claim that without her, business would suffer. The court did however outline circumstances in other cases where employees were forced back to work.
What was left open was the possible claim that the employer had against the employee if the employer could prove that he/she had spent time and money in trying to find a replacement. This claim for damages was not part of that particular case.
As a word of caution, it should be noted that in South Africa today, jobs are scarce and finding alternative employment has become risky. Unless an employee has received a contract of employment or a letter of appointment from a future employer, it is not wise to give notice merely on a handshake or a verbal promise.
Unemployment in South Africa is at almost 50%. In some instances, in the youth category, more than 75% of our youth can’t find employment. It would be reckless to resign unless an alternative employment has been secured in writing.
* Michael Bagraim.
** The views expressed here are not necessarily those of Independent Media.
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