Termination of the employment relationship occurs at the death of the employee, at retirement, through dismissal, by mutual agreement or at the instance of the employee by means of resignation. Resigning normally requires giving written notice in advance.
The length of notice that is required is prescribed in the Basic Conditions of Employment Act (BCEA):
- A week’s notice if the employee has up to six months’ service.
- Two weeks’ notice if the employee has between six months’ and 12 months’ service.
- Four weeks’ notice if the employee has 12 months’ service or more.
The employment contract can provide for other periods of notice, as long as these are longer than those prescribed in the BCEA, but the same notice periods should apply to both the employee and the employer.
If an employee leaves without giving notice or works only a portion of the notice, this can cause operational problems for the employer who then has to suddenly put expensive contingency measures in place in order to maintain its production, but in some cases the employer keenly accepts the immediate departure.
If the parties agree on a shorter notice period, the employer does not have an obligation to pay the employee is this period is “forfeited”. If the employer however insists that the employee depart immediately, the employer are still obliged to pay the remuneration for the full notice period.
We all know that employees can refer a dispute to the CCMA, but what can employers do if employees leave without working the required notice and without the employer agreeing to this?
- The employer can apply to a court to issue an urgent order for specific performance. This is an order requiring the employee to work during the required notice.
- The employer could apply to court for damages caused by the employee’s failure to work the notice. However, should the employer claim for damages from the employee, it must be able to quantify and prove specific losses due to the employee’s breach of agreement. The value of this loss or claim may not be deducted from the last salary payment as it has to first be agreed to between the parties or proven in a court.
Other issues relating to resignations
Once resignation occurs, employers often realise that the employment contracts which they have in place are inadequate to provide for the recovery of debt owed by the employee, to the employer. Employment contracts should pro-actively address the issue of debt at the time of resignation and authorise the employer to deduct this from the final pay.
Similarly, employers often find themselves unable to object to the resigned employee joining a competitor, thereby naturally running the risk of trade secrets (and client lists!) being “shared” with the new employer. Once again, the employment agreement should deal with issues such as confidentiality and restraining former employees from competing with the employer.
Issues regarding the payment of future commission or sales bonuses often arise when an employee resigns.
The key aspect of preventing problems at resignation, is to pre-empt all possible bones of contention at this time by ensuring that employment contracts are professionally drafted.