The issue with employees resigning with immediate effect is a problem that seems to be happening more often. Employees simply send a message or letter stating that they resign with immediate effect and leave the employer helpless. The employee simply ignores the stipulated notice periods in their contracts.
The questions constantly arise, what remedies does the employer have?
Employees are usually required to give one week notice, should they been employed for less than six months, two weeks notice, should they been employed for more than six months, but less than one year or four weeks notice, should they been employed for more than one year. There are certain exceptions to the aforementioned notice periods should there be a Sectoral Determination or Bargaining Council applicable.
Employees who give their resignation with immediate effect violate the Basic Conditions of Employment Act (BCEA) as there are no provisions in the BCEA that allow an employee to give a resignation with immediate effect. Therefore, an employer must deal with the matter as a breach of contract.
In order for employers to protect themselves, employers must stipulate in the employment contract that should the employee terminate the employment contract without tendering the contractual notice period. The employer will be entitled to deduct monies from the final payment to the employee, an amount equal to the period of notice not given.
By including such a clause in the employment contract, it becomes a legal binding agreement between the employer and the employee. This provision ensures that employers protect themselves and saves legal costs that will have to be incurred to recover any damages from an employee.
Should this clause not be included in the employment contract, the employer may not deduct any monies from the final payment due to the employee. The employer has to pay the employee in full and will have to rely on civil procedures for breach of contract for any damages the employer wishes to recover. The legal costs do not always justify the damages that an employer wishes to recover.
Thus, it is always important to ensure as an employer that the employment contracts are up to date and drafted in accordance with the legal provisions and the latest amendments in order to ensure that the interests of the employer are protected.
It is important to remember that each case must be considered on its own merits and it is advisable that an employer consult with their local SEESA office before making any decisions.
About The Author
Daniel Brandson started his career at SEESA in 2020 and is currently a Labour Legal. He obtained his Bachelor of Laws at the University of the Free State in 2016. He thereafter completed his articles at CM de Bruyn Attorneys and was admitted as an Attorney of the High Court of South Africa.
- Basic Conditions of Employment Act.