Section 37 of the Basic Conditions of Employment Act (BCEA) governs the termination of employment in South Africa, stipulating specific conditions to protect employees’ rights regarding notice during periods of leave. When an employer initiates the termination of an employment contract, they are prohibited from giving notice to an employee during any period of leave, as outlined in Chapter 3 of the Act, except for sick leave. This rule ensures that the employee’s entitlement to leave is preserved and that their leave is not disrupted by a notice period.
Employees, however, retain the right to issue notice of termination even while on leave. Nonetheless, there are certain aspects to consider for both the employer and employee. The notice period should always adhere to the terms set forth in the employment contract or any applicable collective bargaining agreement, which generally stipulates the required notice period for either party’s termination of the employment relationship.
The type of leave also plays a crucial role in understanding the termination process. If the employee is on statutory leave, such as annual or sick leave, they are still permitted to give notice during these periods. However, if the employee is on a more specific type of leave, such as maternity leave or family responsibility leave, special considerations apply. During maternity leave, for example, an employee is protected under both the BCEA and the Labour Relations Act (LRA), which provide measures to ensure an employee’s right to uninterrupted time for recovery and newborn care.
Termination during maternity leave involves additional restrictions. Under the BCEA, employers are expressly forbidden from issuing a notice of termination to an employee on maternity leave unless there are valid grounds unrelated to her pregnancy or leave status. This safeguard upholds the employee’s right to security in employment during a sensitive period and protects against discriminatory practices. In the same vein, the employee herself is not generally allowed to terminate her employment during maternity leave, as the focus of this leave is to grant her sufficient time away from work for childbirth and infant care.
Once the maternity leave concludes, regular rules regarding notice periods and termination of employment come back into effect. Either the employer or employee can initiate the termination process under the usual conditions stated in employment laws or their contractual terms. It is generally advisable for both parties to carefully review the employment contract, applicable labour laws, and any internal policies to ensure compliance with legal standards and to safeguard both parties’ rights throughout the termination process.
These legal provisions protect employees’ rights during leave and ensure that employment termination respects periods of absence mandated by law. By adhering to these rules, both employers and employees help maintain a fair and balanced employment landscape where the needs of the workforce are respected during times of personal or family significance.
