Termination of Employment while on Leave

Apr 8, 2024

The law

The employer or employee may terminate the employment relationship at any time if the resignation or termination of the employment relationship is in accordance with section 37 of the Basic Conditions of Employment Act (BCEA), the contract of employment or appropriate collective bargaining agreement, provided that the conditions in the latter are not less favourable than those stipulated in the BCEA.

The employer may terminate the contract of employment of an employee due to misconduct, poor work performance and operational requirements (retrenchment). The employee, on the other hand, may also terminate the contract or give notice, due to a new or better job offer, or any other reason such as dissatisfaction, feeling uninspired, interest in a different company culture, development opportunities, etc.

In terms of section 37(5)(a) of the BCEA, when an employer gives an employee notice of termination of employment, it must not be given during any period of leave to which the employee is entitled to in terms of Chapter Three of the BCEA which includes annual leave, sick leave, maternity leave, family responsibility leave and parental leave. In other words, when an employee is on any of the aforementioned types of leave, the employer may not terminate the employee’s contract of employment.

Further to the above, notice of termination of employment by the employer may not run concurrently with any period of leave to which the employee is entitled in terms of Chapter Three of the BCEA, except sick leave.

An employee has the right to give notice of termination of employment during a period of leave, but various factors will have to be considered.

 

Employee’s contractual obligation

As mentioned, the notice period of the employee must comply with the terms stated in the contract of employment, or in the absence thereof, with the provisions of the BCEA or collective Bargaining Council Agreement, where appropriate.

It is also dependents on the type of leave the employee is taking. If the employee is on statutory leave such as annual leave or sick leave, notice may be given during this time. However, if an employee is on special leave such as maternity leave, family responsibility leave or parental leave, there may be specific conditions or rules governing the termination of employment during such leave.

When it comes to termination of employment during maternity leave, both the employer and employee have certain rights and responsibilities.

 

Maternity leave

An employee on maternity leave is protected by the BCEA and the Labour Relations Act (LRA). They provide guidelines to protect the rights of employees, including those on maternity leave. According to the BCEA, an employer cannot give notice of termination of employment to an employee during her maternity leave period, unless there is a valid reason unrelated to the employee’s pregnancy or maternity leave.

Similarly, an employee on maternity leave cannot give notice of termination of employment during the maternity leave period, as the purpose of this leave is to provide the employee with uninterrupted time to recover from childbirth and care for her new born.

After the maternity leave period is over, normal rules regarding notice periods and termination of employment apply. Either party can initiate the termination process under the usual employment laws and regulations.

 

Conclusion

It is advisable for both the employee and the employer to consult the employment contract, applicable labour laws, and any relevant policies or agreements to ensure that the termination process is conducted in accordance with the law and the terms provided.

Disclaimer: LabourMan exclusively provides services to employers.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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