By Ettienne Pio

Is my employer supposed to pay me for a notice period if my services are terminated during short-time?

Many businesses introduced short-time by agreement with employees during lockdown. Despite the fact that businesses can now gradually get back to full scale business there are those that simply cannot make it, unfortunately. In such cases the services of many employees would then be terminated in writing and by giving them notice while they are still on short-time. Some employers maintain that, in such circumstances, you are not entitled to notice pay because you were not at work physically. In this article we will deal with the question: “Must my employer pay me for a notice period if my employment is terminated while being on short-time?”

Section 37 of the Basic Conditions of Employment Act (BCEA) stipulates that, subject to section 38, the employer must give at least the following notice upon termination of employment:

1. a) One week if the employee was employed for six (6) months or less;
2. b) Two weeks, if the employee was employed for more than six (6) months but less than a year;
3. c) Four weeks if the employee was employed for more than twelve (12) months.

Section 37(2)(a) of the BCEA also stipulates that a collective agreement may not prescribe shorter notice periods, except in the case of employment periods exceeding 12 months where notice may be reduced to being at least two (2) weeks.

Section 38 of the BCEA stipulates that instead of giving an employee notice in terms of section 37, an employer may pay the employee the remuneration the employee would have received if the employee had worked during the entire notice period.

Employees earning a salary that exceeds R205 433,30 per annum (“BCEA threshold”) can obviously also agree contractually on a notice period for termination of employment.

During short-time an employee retains his / her status as an employee and the employment contract, too, remains in force.

From the above it is clear that sections 37 and 38 of the BCEA oblige the employer to give the prescribed notice of termination of employment, or to pay the employee in terms of section 38 for the notice period if it is not required of the employee to work during that time. If an employer does indeed not require an employee to work during short-time, the employer will then be liable to pay him / her in lieu of work during the notice period.

Therefore, should an employer fail to pay for an employee’s notice period, the following remedies will be available to the employee:

1. Lodge a complaint with the Department of Labour with a request to issue a compliance order against the employer to make the prescribed payment in lieu of notice;
2. In terms of section 73A(1) of the BCEA employees earning below the BCEA threshold may submit a claim for outstanding notice owing to the employee to the CCMA;
3. In terms of section 73A(1) of the BCEA employees earning above the BCEA threshold, may submit a claim for outstanding notice owing to the employee to the Labour Court, High Court, Magistrate’s Court or the Small Claims Court (subject to jurisdictional limits and prescriptions); or
4. Lodge a claim arising from an employment contract with the Labour Court in terms of section 77(3) of the BCEA.

It is of vital importance for employees to have the support of a professional and duly registered trade union such as Solidarity to protect their rights in the workplace. Solidarity is here for you. Call 0861 25 24 23 for advice and to join the trade union.