May an employer deduct an amount from my salary if I do not give two months’ notice? My contract states that I must give two months’ notice and if I do not give two months’ notice, they may deduct an amount from my salary. I signed the contract, but is it valid?
A service contract may be terminated after notice of at least –
(a) one week, if the employee has been in service for six months or less;
(b) two weeks, if the employee has been in service for six months or less, but not longer than one year;
(c) four weeks, if the employee has been in service for one year or longer, or if a farm worker or a domestic worker has been in service for longer than six months.
It often happens that employees bind themselves contractually to give longer notice periods as prescribed.
This means that both parties agree and are therefore contractually obliged to mutually give two months’ notice. The latter is aligned with section 37(3) of the Basic Conditions of Employment Act. The Act determines that no agreement may expect an employee or allows that a notice period which is longer than what is expected from the employer, may be given.
The meaning of this employment condition and for which is provided, is that if you do not give the agreed two months’ notice, you agree that the employer may deduct an amount equal to the notice period you have not given from any monies that are due to you at that stage.
As already mentioned, this is a condition which was agreed on and is therefore totally valid and enforceable.
You will have difficulty to claim that you do not understand the employment condition or that you did not agree thereto.
It regularly happens that employees do not give the statutory or agreed notice period. This comes down to breach of contract and all the employer is left to do is to enforce the contract (for example by demanding specific compliance), or to cancel the contract and claim damages. The burden of proof is with the employer to sue and to prove the damages.
In your case, it is not necessary to prove any damages because you accepted the deduction as an employment condition. The claim is also not for damages or loss, otherwise you could possibly have appealed to section 34 of the Basic Conditions of Employment Act.
I also refer you to Labourguide with acknowledgement:
This reference is provided only as an explanation of the above and not as authority.
In order to protect themselves, employers must stipulate in the employment contract that should the employee terminate the employment contract without tendering the written contractual notice period, then the employer will deduct from the final payment to the employee, an amount equal to the period of notice not given.
By including this as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment which the employee is then legally bound to follow and should he/she not do so, then the employer can make the deduction accordingly.
If this condition is not stipulated in the employment contract, the employer may not deduct any monies from the final payment due to the employee but must pay the employee in full and then sue the employee civilly (in terms of breach of contract) for any damages the employer may wish to recover.
(There should have been a difference if the employment condition read that “…both parties agree that the employer will suffer damages to the amount of the notice period the employee fails to give…” Such a clause would have placed the burden of proof once again on the employer to prove such damages because it is common cause that damages cannot be specific or determined in advance before the specific incident has taken place. Therefore, it would not have been valid.)
Every case has its own specific merit, but our opinion is that the condition, as stated in your employment contract, may be implemented by the employer when you fail to give two months’ notice. The reason is because it is an employment condition you accepted and there had been intention to do so.
Our advice would then be to notify the employer if you are planning to give less than two months’ notice and request that the employer either cancel the clause or amend it to just one month.
Author: Phil Davel