A resignation is something done by the employee alone and is not something that requires an employer’s input or agreement. The court clarified that a resignation involves two separate elements:
1. The unilateral act of resignation; and
2. The requirement to give notice.
The resignation isn’t invalid if the employee doesn’t give proper notice. This simply creates a breach of contract.
Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they are advising the employer that they will cease to work for the employer from a certain date.
So, what happens if an employee is offered new employment – how much notice must he give to his employer? And if an employer wishes to terminate an employee’s employment, what notice is the employee entitled to before his/her 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:
1. One week’s notice if the employee has been employed for six months or less.
2. Two weeks’ notice if the employee has been employed for more than six months, but less than one year.
3. Four weeks’ notice if an employee has been employed for one year or more.
4. 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.
Some things to consider when dealing with resignations:
1. When your employee resigns and you accept his/her resignation, you should confirm your acceptance in writing. For example, state that you acknowledge receipt of the letter of resignation and confirm that you have accepted the resignation. In this letter you can confirm the terms that are applicable, for example:
“We confirm that you have indicated that you wish to work out your notice period of one month and that you requested to take leave. Your leave has been granted.” or
“We confirm that we are willing to waive your notice period so that you may commence employment with your new employer immediately. We confirm that your last working day will be this Friday, 21 June 2019. Because you are not working your notice period, you are not entitled to notice pay. We will ensure that all your accrued leave is paid out to you.”
2. A resignation brings the employment contract to an end immediately or at the end of the notice period, depending on what is accepted by the employer. The contract doesn’t terminate on the date the notice is given. It only terminates when the notice period expires (unless you waive the notice requirement).
3. A resignation terminates the employment relationship. The Basic Conditions of Employment Act says that you are required to provide your employee with a certificate of service when he/she leaves your employment, irrespective of the reason why he/she leaves your employment. Therefore, when your employee resigns, you are required to provide him/her with a certificate of service.
4. When an employee resigns, he/she is normally obliged to work out the notice period that is stated in their contract of employment or that is required by law. This is because the purpose of a notice period is to allow the employer to find a replacement and ensure that there is a smooth hand-over in order for business to continue without interruption. If your employee resigns without giving you notice as required by law or in terms of the employment contract, he/she is in breach of contract and you don’t have to pay notice pay in such a situation. If, after he/she has given notice, the employee doesn’t work out their notice period, you don’t have to pay him/her (no work, no pay). If the employee gives late or short notice, which is a breach of contract and you can either hold the employee to what’s left of the contract or cancel and sue for damages. If the employee doesn’t give proper notice and you choose to hold him/her to the contract, then the contract terminates after the full period of the notice.
5. An employee can’t take leave during the notice period, but he/she can take leave when he/she was the one who terminated the contract by resigning. Employers usually don’t allow employees to take annual leave during their notice period in order to ensure business continuity. In some cases, employers may prefer the employee to take leave, but this is not allowed under the Basic Conditions of Employment Act which says that notice can’t run concurrently with any period of leave to which the employee is entitled under the BCEA (except sick leave). This means that employees also can’t give notice while they are on leave. Employers can decide if they would prefer that an employee who has resigned takes leave during their notice period and confirm same in writing.
6. BCEA says that where an employee resigns and the employer waives any part of the employee’s notice period, the employer must pay the employee notice pay unless the employer and the employee agree otherwise. Therefore, if employers waive employees’ notice period and do not wish to pay his/her notice pay, they must have a mutual agreement with the employee. If employers arrive at an arrangement to waive employees’ notice period and not to pay notice pay, employers must get the employee to sign a written agreement to avoid the possibility of a later dispute. This can be in the form of a simple letter.
7. Circumstances may arise where an employee has access to sensitive company or business information or client contracts and the employer prefers that the employee no longer come to work during his/her notice period, for the sake of risk management. Employers may therefore agree with the employee that he/she won’t come into the office during their notice period. In these circumstances, the employee’s employment will only terminate at the end of their notice period, but he/she will not report for duty during the notice period and will be allowed to stay at home. This sort of arrangement is often referred to as garden leave because the employee is paid to be at home.
8. Termination pay means the payment legally due to your employee when he/she leaves your employ. An employee who resigns will be entitled to the termination pay that is due to him/her. Termination pay must be calculated given the circumstances of each resignation and is calculated with reference to an employee’s remuneration and not his/her basic salary or wages. This means that in addition to their basic salary, termination pay must include any other payments that employers make to employees on a regular basis for the work that he/she does.
9. A restraint may also include undertakings by an employee that for a specified period he/she will not perform their profession or trade. When hiring new employees, it is always important to check whether they are under a restraint in favour of their previous employer. If you are aware of a restraint which stops an employee joining a competitor and you hire that employee, you may expose yourself to litigation and a possible claim for damages.
A restraint may also include undertakings by an employee that for a specified period he/she will not:
• Encourage clients/customers to take their business away from her employer
• Encourage suppliers to stop supplying or to change the terms of their supply arrangement with his/her employer
• Encourage other employees of her employer to leave their jobs to join a competitor.
10. A confidentiality undertaking is an agreement between an employer and an employee that the employee will not disclose or use the employer’s confidential information other than as permitted in terms of their employment relationship for purposes of furthering the employer’s interests. An employee who has signed a confidentiality agreement and who discloses or uses confidential information after he/she has resigned acts in breach of his/her employment contract and the employer can enforce the confidentiality undertakings against the employee. Even if an employee’s contract of employment does not contain a confidentiality undertaking, employers are protected by the common law against unlawful competition by employees using their employer’s confidential information. Confidential information can include:
a. Business strategy and plans
b. Trade secrets
c. Marketing data and strategies
d. Client lists and contacts
e. Computer information
f. Technology and know-how
11. When an employee resigns, employers will need to make sure that he/she returns all company property in his/her possession. This could include:
a. His/her laptop computer/cell phone (if company owned)
b. Tools and uniforms
c. any other assets that you have given him/her to use while employed with you
d. His/her company car
e. Any company credit cards and access cards that he/she may have had use of
f. All confidential information and documentation (including copies) as well as all computer programs.
Therefore, when you give notice to terminate your employment contract, know your 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 benefits from the protection provided by the BCEA.
By Cindy Ross