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Labour Law Feature

Every person understands that they are required to give notice of their resignation to the employer. These notice periods are stipulated in the Basic Conditions of Employment Act which states that notice periods may be given of not less than;

  1. a)  one week, if the employee has been employed for six months or less;
  2. b)  two weeks, if the employee has been employed for more than six months but not more than one year;
  3. c)  four weeks, if the employee–
  4. i)   has been employed for one year or more; or
  5. ii)  is a farm worker or domestic worker who has been employed for more than six months.

It is, therefore, abundantly clear that the neither party may give notice of LESS than the above stipulated.

However, the question has arisen whether employees may give more notice in order to benefit from having to work longer or get paid more when they resign?

In Uthingo Management (Pty) Ltd v Shear NO & others [2009] 6 BLLR 590 (LC) the employees gave notice for a longer period than they were contractually required to give. The employer argued that this was seemingly to benefit the employees who had resigned as they would receive bonuses from the company during certain months that year. The employees in turn argued that this was to ease the strain on the employer for having to find suitable replacements. The company shortened the notice period to that which the employees were required to give upon resignation. The matter was first referred to the CCMA where the employees indicated that they had been dismissed by the employer. The CCMA Commissioner agreed with the employees and stated that they had indeed been dismissed.

The Labour Court disagreed with the finding of the CCMA and Judge Molahlehi in his judgement referred to the remarks of Judge Spoelstra in Humphries & Jewell (Pty) Ltd v Federal Council of Retail & Allied Workers Union & others (1991) 12 ILJ 1032 (LAC) at 1037G; “ the fact that the respondent erred by referring to a notice period when the repudiation was acted upon, is in my view not relevant to the issue before us, it should not be left to an employee to dictate the terms on which his employer should accept his repudiation.”

It is abundantly clear therefore, that employers are not required to accept extended notice periods given to them by employees and are indeed within their rights of referring back to the notice periods in their agreements/contracts of employment which were agreed upon at the commencement of the employment relationship. To this end, it would always be important to stipulate in such agreements what the applicable notice periods are.

Contact johan@leeuwmar.co.za for more information in this regard.