Notice Periods & Breach of Contract
Section 37 of the Basic Conditions of Employment Act (BCEA) clearly specifies the statutory notice periods required to be given by either party when terminating the employment contract.
These are:
- one week, if the employee has been employed for six months or less
- two weeks, if the employee has been employed for more than six months, but not more than one year, and
- four weeks if the employee: –
- has been employed for one year or more; or
- is a farm worker or domestic worker who has been employed for more than six months.
A written agreement (usually articulated in the contract of employment) may provide for certain of these notice periods to be varied, but with very clear limitations. It is important to note, however, that, under no circumstances, “may an employer require or permit an employee to give a period of notice that is longer than that which is required of the employer.”
What happens when an employee gives the employer only 24 hours notice or less?
In a generation which is driven by instant gratification, there appears to be an increasing tendency to resign at short notice with some employees handing in their notice and simply walking out immediately (usually on pay-day or soon thereafter). When this happens, the employee is clearly in breach of their contract of employment.
What recourse does the employer have? How can the employer protect himself against such behaviour? Does the employer have a right to recover his losses from money which is owed to the employee?
Employers would be well advised to clearly specify in the employment contract that, in the event that the employee fails to work the contractual notice period, the employer will deduct from the employee’s final salary, an amount equal to the salary the employee would have earned during the period of the notice which was not worked. When the employee agrees to the conditions of employment at the outset, he then also legally binds himself to these conditions surrounding the notice period upon termination. Should the contract of employment not contain this specific proviso, then the employer would not be entitled to make any deduction from the employee’s final salary in respect of notice not worked as the employee has not given his consent in this regard.
In cases where the employee resigns abruptly on or just after the monthly pay date and has little or no annual leave pay due to him, there may be insufficient funds due to the employee, for the employer to recover the full value of the un-worked notice period from the final payments. In such instances, the employer’s only option would be to pursue a civil claim against the employee. Invariably, the legal costs in such a matter would far exceed the value of the employer’s claim against the employee, in which case it would not be economically viable to proceed such such a claim.
The old adage of “prevention is better than cure” remains true and employers should rather protect themselves by means of a detailed employment contract. The absence of an employment contract actually puts the employer at greater risk than the employee due to the fact that the employer then can not rely on any of the protections provided for in the Basic Conditions of Employment Act, which require a “written agreement“.
Pro Act HR and IR Consultants can assist your organisation in the drafting of employment contracts tailored to meet the specific needs of your business.
