Termination explanation
Farm and domestic workers employed for more than 6 months must be given 4 weeks
IN TERMS of our Basic Conditions of Employment Act of 1997, and in particular Section 36 (Chapter 5), the employer can terminate the contract of employment on notice of not less than one week if the employee has been employed for six months or less; two weeks if the employee has been employed for more than six months but not more than a year; four weeks if the employee has been employed for one year or more.
It should be noted that a farmworker or a domestic worker who has been employed for more than six months must receive at least four weeks’ notice.
The notice is only applicable to employees who work more than 24 hours in any one particular month at that employer.
This notice period as outlined above is the minimum notice. An employee can be given more notice than that by the contract of employment or the letter of appointment. If the employee is granted more than the minimum notice, this must be adhered to by both the employer and the employee.
The employee can terminate the employment contract with less notice than prescribed either by the Basic Conditions of Employment Act (BCEA) or the letter of appointment if the employee is forced to resign. This is known as constructive dismissal.
The employee will have to prove that he or she had no choice other than to resign because of the onerous circumstances placed on him or her by the employer.
The employer might also dispense with the full notice period if the employee is deemed to have breached the employment contract or broken the trust between the employee and the employer.
This breach of contract or breach of trust must be ascertained with a proper process. The employer is obliged to have a proper disciplinary process before a lesser notice period can be justified.
A collective agreement may not permit a notice period shorter than that required by the BCEA. The notice period, if longer than the BCEA, must be equal for both the employer and the employee. Notice of termination of a contract of employment must be given in writing, except where it is given by an illiterate employee. If an employee who received notice of termination is not able to understand it, the notice must be explained verbally by, or on behalf of, the employer to the employee in an official language the employee reasonably understands.
If the employees are accommodated on the employer’s premises, they have a right to remain in that accommodation during that notice period. Even if the contract is terminated prematurely, the employee has a right to remain in the accommodation for at least a month.
The accommodation aspect of the termination of employment is fraught with various difficulties and is often challenged by employees in the civil courts.
Employees are normally obliged to work through their notice period unless the employer specifically states that they may leave early. If the employer wishes the employee to leave early, the employer must continue paying their salary despite the fact that no work is to be rendered.
In terms of Section 38 of the BCEA, an employer may pay the employee the remuneration the employee would have received if the employee had worked during that notice period. The employer and the employee together might agree on a shorter notice period because the employee wishes to take up employment elsewhere.
The employer would then not need to pay salaries beyond the working period. In certain instances, employers agree to pay the employee the value of the accommodation rather than keep the employee in the accommodation. This agreement must preferably be recorded in writing.
The employer must pay to the employee certain monies on termination. Firstly, any leave outstanding must be paid out by the employer.
Any paid time off that the employee is entitled to and an employee hasn’t taken would likewise be paid. If the termination is due to operational requirements, then in terms of Section 41 of the BCEA, the employee is entitled to severance payment. The severance payment is calculated as one week’s pay per completed year of service.
If, however, the employer offers alternative employment on a similar basis, then the employee would not be entitled to the severance payment.
All employees are entitled to a certificate of service on the termination of employment. This certificate must outline the employee’s full name, the name and address of the employer and description of any bargaining council or sectoral determination.
This certificate must contain the date of commencement and the date of termination of the employment with the title of the job and a brief description of the work done.
A full outline of the remuneration paid as at the date of termination should be given, and often employees request the reason for the termination of employment.
In order to understand the nature of the employment contract, despite the fact that the contract states a specific notice period must be given before the termination, this notice period cannot be legally and fairly given unless there is a good reason and unless there is a proper process followed.
If the notice given by the employer is not properly done, this can be regarded as being both unfair and unreasonable.
Notice given by an employee should be in writing and must be received by the employer or someone authorised to accept the resignation.