Sonja Vorster
I have received so many complaints from employers about employees walking out on a mere 24-hours’ notice when resigning.
ALSO READ: LABOUR BUZZ – Unemployment Insurance Fund benefits
It creates a lot of unhappiness as the employer is not provided with a reasonable period to find a replacement for the position. The employer has spent money and time on training the employee.
It seems that it has become common practice in the workplace that employees do not honour the notice period in their contract of employment. The Basic Conditions of Employment Act (BCEA) of 1997, Section 37 stipulates the following in regard to termination and states:
(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than –
(a) one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more than one year;
(c) four weeks, if the employee-
(i) has been employed for one year or more; or
(ii) is a farm worker or domestic worker who has been employed for more than six months.
READ MORE: LABOUR BUZZ: Is a ‘lie detector’ test legal?
What usually happens is an employee is appointed and then trained at a cost to the employer. A contract of employment is signed, which normally has a clause stating that a month’s notice should be given at termination of the contract by either party.
In practice however one morning the employee gives notice, in writing or not, and they want to leave the next day – 24-hours – to the horror of the employer.
These statutory stipulations are all very well – but it gives absolutely no protection to the employer when the employee has simply walked out on 24-hours’ notice.
GET YOUR BUSINESS LISTED HERE. IT’S QUICK AND EASY! : Business Listings
In a case such as this the ONLY recourse available to the employer is to institute a civil claim against the employee for breach of contract as the Labour Legislature does not give the employer any other option.
This was confirmed in the matter NATIONAL ENTITLED WORKERS UNION v COMMISSION FOR CONCILIATION, MEDIATION and ARBITRATION and OTHERS (2007) 28 ILJ 1223 (LAC).
In the past it had been the illegal common practice for the employer to simply deduct one month salary from the final pay-out, but in many cases the employee tenders 24 hours’ notice the day after payday, and in many cases there is no leave pay due and thus the employer is left high and dry with no means of recovering his losses, if any.
How illegal is this practice of the employee walking out on 24-hours’ notice? The answer is that it is totally illegal – nowhere in the BCEA is there any provision allowing an employee to terminate his employment contract on 24-hours’ notice.
READ MORE: LABOUR BUZZ: Temporary employee or not…
The employer must handle this in terms of breach of contract. For the employers to protect themselves, employers must stipulate in the employment contract that should the employee terminate the employment contract without tendering the written contractual notice period, then the employer and employee agrees that the notice period will be deducted from the final payment to the employee, an amount equal to the period of notice not given.
By including this as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment, which the employee is then legally bound to follow and should he not do so, then the employer can make the deduction accordingly.
If this condition is not stipulated in the employment contract, the employer may not deduct any monies from the final payment due to the employee but must pay the employee in full and then sue the employee civilly (in terms of breach of contract) for any damages the employer may wish to recover.
Click to receive news links via WhatsApp. Or for the latest news, visit our webpage or follow us on Facebook and Twitter
