If an employee resigns, the notice period depends on several factors. Firstly, an employee’s service contract may contain a provision that regulates the notice period. If the employment contract doesn’t contain such a provision the notice period requirements as set out in the Basic Conditions of Employment Act must be followed, namely:
- 1 week’s notice if the employee has less than 6 month’s service;
- 2 weeks’ notice if the employee has between 6 months’ and a year’s service;
- 4 weeks’ notice if the employee has more than 12 months’ service.
Secondly, an employee’s service contract can regulate the notice period. If that is the case, it trumps the notice period as set out in the Act. However, the service contract may not shorten the notice period as set out in the Act. The notice given by the employee may also not be more than the notice that must be given by the employer.
An employee must guard against failing to work his or her notice period, and immediately leaving after he or she resigned. In the first place it is unfair towards the employer, since he or she wasn’t given reasonable time to make alternative arrangements for the employee’s absence. Secondly, the employer can sue the employee for any losses suffered due to the employee’s sudden resignation. The amount the employer can claim, can thus exceed the salary that the employee would’ve received if he or she worked the notice period. Alternatively, the employer can also get an urgent court order for specific compliance, to force the employee to work the notice period.
The only case where it isn’t necessary for the employee to work the notice period, is if the employer consents to it.
Thus, if you consider resigning, please contact Solidarity first to determine whether you are complying to all the legal requirements.