Employer and employee obligations on terminating employment

IN PREVIOUS columns, we discussed unfair dismissals and referrals to bargaining councils and the Commission for Conciliation Mediation and Arbitration. However, it is necessary for an employer to follow the Labour Relations Act and the Basic Conditions of Employment Act (BCEA) when employment is terminated.

The BCEA specifically outlines how much notice period must be given to an employee when the employment contract is terminated.

The letter of appointment of an employee may outline a longer notice period than that governed by the legislation.

This notice period must be equal to the notice period that the employee has to give the employer when wanting to resign.

All employees working for more than 24 hours a month for an employer are entitled to a notice period provided for in their contracts, as long as it is at least one week’s notice if the employee has been in employ for six months or less, two weeks’ notice if employed for more than six months and four weeks’ notice for an employee who has been there for at least 12 months.

If an employee receives accommodation as part of the employment contract, that accommodation might be governed by other legislation and might not be able to be terminated in line with the termination of the employment contract.

Normally, employees are obliged to work through their notice period unless the employer releases them specifically from any work during that period. A resignation of an employee must be in writing and must be brought to the attention of the employer.

The notice must be absolutely clear in its meaning. A mere threat of wanting to resign does not constitute a resignation. A fixed-term contract inherently gives notice as soon as the employee signs the contract.

A resignation, if forced on an employee or if the employee feels he or she has no other choice, could be deemed to be a constructive dismissal.

Often contracts of employment refer to a calendar month’s notice which would only be able to run from the end of that month.

However, a 30-day notice period can run from any time during the month.

On termination of employment, the employee has to be paid all his or her overtime and accrued leave.

The employer cannot offset monies owing to the employer by way of salary or leave to the employee.

All employers must give a certificate of service to employees.

This certificate of service is governed by the BCEA and it must reflect the full name of the employer and the employee with the dates of commencement and termination.

The title of the employee’s former job or a brief description of the work for which the employee was employed at the date of termination must be included. All employees are entitled to the certificate of service.

Should an employer not adhere to any of the terms and conditions of the BCEA, the employee may immediately lodge a complaint with the Department of Labour which will allot an inspector to ensure that all the outstanding monies and the requirements contained in the BCEA will be complied with.

The department has the power and the right to refer any dispute of this nature to the Labour Court.