It may happen from time to time that an employee resigns and gives the employer 24 hours’ notice. This may leave the employer in a difficult situation where they have to incur costs to re-advertise the vacant post, spend time training the new employee and getting the new employee up to standard in a very short space of time.
This practice is highly problematic and sometimes costly and frustrating for employers. In these circumstances, a question that may follow, is – may the employee resign on 24 hours’ notice? The answer is no, an employee resigning on 24 hours’ notice is not lawful, as set out in Section 37 of the Basic Conditions of Employment Act (BCEA).
Where does this then leave the employer that has incurred costs to replace an employee who has not honoured the minimum timeframes stipulated for giving notice as envisaged by Section 37 of the BCEA?
The Labour Appeal Court answered this question in the case of National Entitled Workers Union v Commission for Conciliation, Mediation & Arbitration & Others (2007) 28 ILJ 1223 (LAC). In short, what transpired was that an employee of the Union had resigned without giving notice. The Court ruled that there was no legislation, in terms of the labour laws of the country, that gives the employer a right of recourse against the employee and that the only option available to the employer is to sue the employee in a civil court for the damages incurred by them giving short notice to the employer.
What becomes apparent from the above ruling is that in order to avoid instances such as these, it is imperative that employers ensure that their contracts of employment clearly stipulates that should the employee tender their resignation, and the notice period given is not in accordance with Section 37 of the BCEA, then the employer may deduct an amount from the final payment to the employee, which is equal to the notice period not given by the employee. This must be reduced to writing and must be signed by both parties to the employment contract, in order for the employer to be able to enforce this clause.
Be that as it may, it often happens that an employee resigns the day after payday and as such, there are no monies from which the notice period can be deducted. In an instance such as this or an instance whereby there is no clause in a contract of employment allowing the employer to deduct the notice period due by the employee, then the only option available to an employer is to recover the damages incurred, if any, by claiming the monies owed to them by the employee in the civil courts.
This process, however, can be time-consuming, costly, frustrating and in many instances, the effort and monies expended are not worth the monies owed to the employer. Further to the above, it often happens in practice that when an employee wishes to resign on short notice, an employer and employee come to an agreement that the employee does not have to work their full notice period. However, such an agreement is very seldom reduced to writing.
What then often arises is that the employee approaches the CCMA for payment of the notice period which they would have worked. In an instance such as this, an employer is obligated to pay the notice period to the employee. In order to avoid situations such as these, employers must always ensure that any agreements pertaining to giving short notice are in writing between the parties and that the terms of such agreement exclusively encompass the fact that the employee will not be paid their notice period in lieu of short notice given.