Notice Periods as Defined by the BCEA

The BCEA outlines the minimum notice periods required for resignation:

• One week if employed for six months or less.
• Two weeks if employed for more than six months but not more than one year.
• Four weeks if:
  • Employed for one year or more.
  • A farm worker or domestic worker employed for more than six months.

Employers and employees can agree on longer notice periods than these minimum requirements, but they cannot agree on shorter periods. Importantly, such agreements must be mutual and applicable to both parties, as per section 37(3).

Key Considerations for Notice Periods

Careful consideration should be given to the agreed notice periods as they can significantly impact both parties. For instance, an employee might receive a job offer but be unable to start immediately due to a lengthy notice period. Conversely, if a company needs to retrench employees, it must either honour the notice period or compensate the employees for this time.

Employees must understand that once they agree to a longer notice period, they cannot later claim the minimum period prescribed by the Act. Moreover, section 37(4)(a) stipulates that the resignation must be in writing, and once accepted by the employer, there is no obligation for the employer to allow the employee to withdraw the resignation.

Working During the Notice Period

If an employer does not wish for an employee to work during the notice period, they must still remunerate the employee for that time. This situation often arises if the employee has access to sensitive information and poses a potential risk. The employer’s request for the employee to leave early is not considered a dismissal as long as the employee is paid for the remainder of the notice period. Conversely, if an employee chooses not to serve the full notice period, the employer is not required to pay them for the remaining time.

When Notice Can Be Given

According to section 37(5), an employer cannot give notice of termination during any period of leave to which the employee is entitled (e.g., sick leave, annual leave, maternity leave, or family responsibility leave). Notice cannot be timed to coincide with such leaves either. Additionally, section 20(5)(b) prohibits employers from requiring or allowing employees to take annual leave during the notice period.

Handling 24-Hour Notice

Employers often question their rights if an employee fails to serve the agreed notice period. The recourse is limited to civil court, where the employer must prove damages resulting from the breach of the employment agreement. This can be costly and time-consuming. Employers cannot withhold the final salary or accumulated leave unless there is a written agreement allowing such deductions, as stipulated by section 34 of the BCEA.

Defining a Calendar Month

Confusion often arises regarding what constitutes a “calendar month” for notice periods. According to Professor G.E. Devenish in his book Interpretation of Statutes, a calendar month can either be a month as per the calendar (e.g., January 1 to January 31) or a month calculated from a specific day in one month to the corresponding day in the next (e.g., March 4 to April 4). To avoid ambiguity, it is recommended that employers specify in contracts that notice must be given between the 1st and the 3rd of a month to ensure a complete month’s notice.

Dealing with Excessive Notice Periods

Employees might sometimes give excessively long notice periods to receive extended remuneration or to create complications for the employer. Employers are not obliged to accept longer notice periods than agreed upon. In the case of Uthingo Management (Pty) Ltd v Shear NO & others (2009), the Labour Court ruled that employers can insist on the agreed notice period and are not bound to accept longer periods proposed by employees.

Conclusion

Understanding the provisions and implications of resignation notice periods as outlined in the BCEA can help both employers and employees manage transitions more smoothly and avoid potential conflicts. Clear agreements and well-defined terms in employment contracts are essential for minimizing misunderstandings and ensuring compliance with the law.