Introduction
There is an increasing trend of employees that resign with immediate effect ignoring their legal obligation to give the employer notice.
When an employee resigns, the employer has no choice but to find and train a replacement employee. The purpose of the prescribed notice period is to give the employer the time he needs to arrange a smooth handover process. An employee’s resignation without notice may frustrate this process and make the employer feel helpless.
The question is, what can the employer do should this happen?
Before we answer that question, let us first look at what legislation requires from employees.
Legal Requirement to give notice, but no consequences.
Section 37 of the Basic Conditions of Employment Act (the “BCEA”) requires that any employee, who wants to resign, may only do so by giving the employer notice. The length of an employee’s employment determines the specific notice period required.
This statutory requirement is all well and good, but the BCEA does not specify consequences for non-compliant employees.
Employers may think that when employees resign without fulfilling requirements, they can deduct notice pay from final payouts. This is problematic for the following reasons:
- Section 34(1) of the BCEA states that an employer may not make any deductions from an employee’s remuneration unless the employee agrees thereto in writing or if the deduction is legally required or permitted. Since the BCEA does not legally permit this deduction and the employee did not agree thereto, any deductions by the employer for failure to give notice will be illegal.
- Astute employees often resign immediately after payday, leaving no opportunity for employers to deduct payments.
What can the employer do?
- Civil suit
In the Labour Court matter of NEWU vs CCMA and others (2007) 28 ILJ 1223 (LAC), the Labour Appeal Court refused to declare that an employee committed an unfair labour practice when he failed to give the required notice to the employer.
The court stated that the one recourse an employer may have is to sue the employee for breach of contract in terms of ordinary contractual law principles.
The employer should therefore be entitled to sue for specific performance or damages or both.
Unfortunately, our court system is massively overcrowded, and non-urgent matters, which such a case will be, will take many years to complete.
As a result, this option is typically not feasible for employers to pursue.
- The employment contract.
The best insurance available for employers against this type of behaviour is to have properly drafted and implemented contracts of employment in place. Employment contracts must specifically address the following:
- That employees are required to give the employer prior notice of termination of employment. The specific notice periods and any additional requirements must be expressly stated.
- That, should the employee fail to give the agreed-upon notice, the employer will be entitled to deduct an amount from any final payment due to the employee.
- That the amount to be deducted, will be equal to the salary the employee would have earned during the notice period that the employee had not given.
A deduction in line with an agreement as specified will adhere to the requirements of section 34 of the BCEA mentioned above.
Conclusion
A properly drafted employment contract, specifically relating to allowable deductions, is an invaluable tool for employers when dealing with employees that fail to give the proper notice when resigning.
- It serves as a deterrence to employees considering resignation.
- It alleviates the employer’s frustration by providing them some recourse.
- It saves employers from incurring unnecessary legal costs to litigate against ex-employees.
SEESA provides a full range of labour law consulting services. Our team of specialist labour law advisors can assist your business with the drafting of employment contracts that are compliant with any relevant sector-specific labour legislation to give you peace of mind to know that your interests are protected.