An employee’s notice period is determined by his or her employment contract. If your employment contract specifies a certain notice period then you will have to adhere to it. This would be the case even if such period happens to be longer than what is stipulated in the Basic Conditions of Service Act (“the Act”).
If the employment contract makes no mention of a notice period then the notice period would depend on the individual’s period of employment with the particular employer. Section 37 of the Act stipulates the following:
Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than-
(a) one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not longer than a year;
(c) four weeks, if the employee-
(i) has been employed for a year or more; or
(ii) is a farmworker or domestic worker who has been employed for more than six months.
In terms of section 38 of the Act, a party to an employment contract may request not to work the notice period. In such event the employee has to be remunerated for such period unless otherwise agreed to. However, this can only be done by agreement and it is always advisable to record such an agreement in writing. Our labour legislation does not provide for an employee to resign without the employer’s permission and to not serve the notice period.
If a person does not serve the notice period the employer may not withhold such person’s last paycheck, unless thus agreed in the contract of employment. Should a last paycheck be withheld, the person can approach the Department of Labour to lodge a complaint.
It will, however, be within the employer’s rights to take civil action against the person and to recover from the employee any damage suffered as a result of the said employee not having worked his or her notice period. The employer will then have to apply to the court to recover the money.
It is always wise to confirm what a contract of employment stipulates with regard to a notice period for such contract constitutes a binding and enforceable agreement between employer and employee.
Author: Karolien Van Wyk