Chair Hogan Lovells South Africa
Giving Notice to Leave
19 November 201Sowetan
Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they is advising the employer that they will cease to work for the employer from a certain date. What happens if an employee is offered new employment, how much notice must he give to his employer? If an employer wishes to terminate an employee's employment, what notice is the employee entitled to before his service is terminated in cases where disciplinary issues are involved?
All these questions are answered in section 37 of the Basic Conditions of Employment Act 75 of 1997 (BCEA). However, to be afforded the protection in terms of this section, an employee must have been employed for more than 24 hours in a month.
According to section 37 of the BCEA, an employee may give notice of his resignation, or an employer may give notice of termination of employment, within the following time periods:
- One week's notice, if the employee has been employed for six months or less.
- Two weeks' notice, if the employee has been employed for more than six months but less than one year.
- Four weeks' notice, if an employee has been employed for one year or more.
- Four weeks' notice, if an employee is either a farmworker or a domestic worker who has been employed for more than six months.
These are the minimum time periods allowed by law. The consent of both parties is required to agree to a shorter notice period.
A collective agreement may only reduce a notice period of four weeks to two weeks, but may not allow for a shorter notice period. The act also provides that no agreement can be made in which the employee must give the employer a longer notice period than the employer is expected to give the employee.
The law requires that notice of termination of an employment contract must be given in writing. Should an employee receive a notice to terminate his contract from his employer and does not understand it, the notice must be explained orally to the employee in the official language that he understands. If an employee is illiterate, a notice of termination must also be explained orally.
In terms of section 37, an employer may not give notice to an employee while the employee is on leave, sick, or on maternity or annual leave. However, the same does not hold true for the employee. The employee may give notice to the employer while he is on leave, but the notice period will only begin from the day on which the employee returns to work.
The notice period to be served by the employee will affect the employee's annual leave._ in terms or section 20, an employer may not allow or require an employee to take leave during his notice period. This will result in the employer having to compensate the employee for any outstanding annual leave to which he may have been entitled at the end of his notice period.
Therefore, when you give notice to terminate your employment contract, know you rights. Know how many days you have to work, when that period starts and what you are entitled to be paid out. This is to ensure that you receive the most benefit from the protection provided by the BCEA.
Chair Hogan Lovells South Africa