Employers and employees get confused when it comes to resignations and the subsequent issues that may arise. Let us first look at notice periods as described in the Basic Conditions of Employment Act – section 37 and the Main Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty, and Skincare Industry – clause 23.
The Act prescribes notice periods not less than;
a. one week, if the employee has been employed for six months or less;
b. two weeks, if the employee has been employed for more than six months but not more than one year;
c. four weeks, if the employee:
i. has been employed for one year or more; or
ii. is a farm worker or domestic worker who has been employed for more than six months.
The Main Collective Agreement prescribes notice periods not less than;
23.1 An Employer or Employee, other than a Casual Employee, who wishes to terminate the Employee’s employment with the Employer, shall be obligated to only give the following period of notice:
23.1. 1 (one) calendar day’s notice should the termination occur during the 1st (first) month of employment;
23.1.2 1 (one) week if the Employee has been employed for a period exceeding 1 (one) month but less than 6 (six) months;
23.1.3 2 (two) weeks’ notice, if the Employee has been employed for a period exceeding 6 (six) months.
From the above, it is clear that the Act does not make provision for resignation with a notice period shorter than one week, but the Main Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty, and Skincare Industry does. In other words, an employment contract may not allow for notice periods shorter than the periods indicated above, the employer and employee may however agree on notice periods longer than the minimum prescribed periods. As per section 37(3) of the Act and 23(2) of the Main Collective Agreement, it is required that such notice periods must be applicable to both parties. Employers and employees are advised to carefully consider the notice periods that they agree upon since it could have far-reaching consequences in the future.
It may be that a 3 (three) month notice period is agreed upon, but the employee receives a job offer and cannot accept because they must first serve a 3 (three) month notice period. On the other hand, it could be that the company decides to retrench employees and then have to honour the 3 (three) months notice period agreed upon or pay the employee for the notice period if they are not expected to work during the notice period. Employees must understand that if they agree to a notice period longer than the minimum prescribed by the Act or the Main Collective Agreement, they cannot later claim that the Act or Main Collective Agreement only requires four- or two-week notice. It is important to remember that according to section 37(4)(a), a notice of termination of the employment relationship (includes resignation) must be done in writing and once accepted by the employer there would be nothing compelling the employer to accept a request to withdraw the resignation if the employee later changes their mind.
What is resignation?
The test for determining whether an employee resigned or not is that an employee has to, either by word or conduct, show a clear and unambiguous intention not to go on with their contract of employment in that they have to act in such a way as to lead a reasonable person to the conclusion that they did not intend to fulfill their part of the contract. An indication of the intent to resign does not necessarily constitute a resignation. A formal resignation must be given either verbally, or in writing, or perhaps by the employee abandoning the employment.
Employees are considered to have given notice of their intention to resign if they unambiguously inform their employers that they will terminate the contract on a certain date. Notice of intention to resign is a unilateral act that, once given, cannot be revoked without the consent of the other party. Although the Basic Conditions of Employment Act requires notice to be in writing, it does not follow that a verbal notice of intention to resign has lost its common-law significance. However, in order to be binding, the notice of intention to resign must be clear, unambiguous, and unconditional.
The SMS/WhatsApp/Email, etc. resignation
A resignation is a unilateral termination of the contract of employment by an employee. An employee must evince a clear and unambiguous intention not to go on with the contract of employment, by words or conduct that would lead a reasonable person to believe that the employee harboured such an intention.
Notice of termination of employment given by an employee is a final unilateral act which once given cannot be withdrawn without the employer’s consent. In other words, it is not necessary for the employer to accept any resignation that is tendered by an employee or to concur with it, nor is the employer party entitled to refuse to accept a resignation or decline to act on it. If a resignation is to be valid only once accepted by an employer, the latter would in effect be entitled, by simple stratagem of refusing to accept a tendered resignation, to require an employee to remain in employment against their will. This cannot be – it would reduce the employment relationship to a form of indentured labour.
An SMS/WhatsApp/Email, etc. satisfies the requirements of section 12 of the Electronic Communications and Transactions Act 25 of 2002 and is considered to be a communication in writing.
Work during the notice period
The Act and Main Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty, and Skincare Industry further demand that an employer must pay an employee for their notice period if the employer does not want the employee to serve/work their notice period. Assuming that an employee works with confidential information and as such pose a potential risk for the company during the notice period, the company may require that the employee leave prior to the completion of the notice period, provided that the employee is remunerated for the remainder of the notice period. Such a request from the employer will not be seen as a dismissal because section 38 (2) of the Act or clause 23 (2) of the Main Collective Agreement makes provisions for such an arrangement. Should the employee on the other hand indicate that they are not willing to serve the full notice period then the employer does not have to remunerate the employee for the remainder of the notice period.
When may notice be given?
Section 37 (5) of the Act states that:
Notice of termination of a contract of employment given by an employer must –
1. not be given during any period of leave to which the employee is entitled in terms of chapter three; and
2. not run concurrently with any period of leave to which the employee is entitled in terms of chapter three, except sick leave.
In other words, an employer may not give notice of termination of the employment relationship during any period of leave that the employee is entitled to such as sick leave, annual leave, maternity/paternity leave or family responsibility leave. It is further prohibited to give notice of the termination of the employment relationship a day or two before the employee goes on annual leave in order to ensure that the employee’s annual leave will run concurrently with the notice period.
Section 20 (5) (b) further prohibits an employer from requiring or allowing an employee to take annual leave during a period of notice.
24 Hours’ notice:
We often get asked by frustrated employers what rights they have if an employee failed to serve the notice period agreed upon. Unfortunately, there is not much that an employer can do other than to refer the matter to a Bargaining Council where there is a Main Collective Agreement and its compliance are binding on both parties and the industry or to refer the matter to a civil court (sue the employee under common law for breach of contract).
In such an event, the employer will have to prove that the business has suffered damages as a result of the breach of the employment agreement that existed between the two parties. This is a costly exercise and employers will have to weigh up the damages that they suffered against the cost of pursuing the matter in court.
Unfortunately, it is also not possible to withhold the final salary or accumulated annual leave of such an employee unless it was agreed to. In other words, the employer must still pay the employee even though they failed to serve notice and the employer as a result suffered damages. Section 34 of the Basic Conditions of Employment Act (BCEA) prohibits deductions from an employee’s salary without the written consent of that employee. Careful consideration must be given to what would constitute an agreement to withhold the final salary and accumulated annual leave of the ex-employee in lieu of notice not served. It is strongly recommended that such an agreement is included in the contract of employment or that a separate agreement is entered into with the employee in order to avoid having the civil courts as the only recourse. It is extremely important that such an agreement must indicate that the employee gives their express consent for such a deduction or withholding of payment.
What is a calendar month?
This is another area of mass confusion between the employer and the employee. The contract of employment clearly states that an employee must give a calendar month’s notice, the employee therefore tenders their resignation on the 15th of the month arguing that a calendar month could be from the 15th of one month to the 15th of the following month and does not necessarily have to be from the 1st to the 31st of a month.
“A calendar month is a month according to the almanac or common calendar. A calendar month is therefore not a fixed number of days but varies according to the actual month concerned. A calendar month need not necessarily run from the beginning of a month. In ascertaining a certain number of calendar months the civil method of computation is used: the first day of the period is included and the last day excluded. However, the application of this definition is ambiguous. The term “calendar month” may be interpreted in two ways: either as a month as it appears on the calendar, (1 January until 31 January) or a month reckoned in terms of one day in a particular month until the corresponding day of the next month; thus, for example, from the fourth day of March until the fourth day of April. Both possibilities arise in practice.”
From the above, it is clear that both the employer and employee could be correct in their interpretation of a calendar month, and it is therefore recommended that employers indicate in contracts of employment that notice must be given between the 1st and the 3rd of a month in order to ensure that employees serve a complete month as notice and where applicable.
Too much notice
It often happens that troublesome employees give far too much notice in anticipation of being remunerated for their notice periods instead of requiring them to serve the excessively long period of notice. It could also be that the employee works with sensitive information and poses a real risk to the employer if allowed to continue employment during the period of notice, especially if the employee is going to work for the competition.
Employers do not have to accept extended notice periods that they did not agree upon. Employers will be within their rights to revert back to the agreement reached upon commencement of employment and insist on the agreed period of notice.