Employment Law Advice on How to Protect Against Employees Not Giving the Required Notice
Many employees, often in the lower pay ranks, fail to give the minimum required notice. In just as many instances, the employees do give notice, but fail to work the required notice period. This may be the result of ignorance regarding employment law in South Africa or based on incorrect advice from friends or fellow workers. Regardless of the reason, the employer is left with the short end of the stick.
If you are a restaurant owner and your employee simply resigns without working another shift, it can leave you in quite a predicament. This is true whether your shop assistant, driver, or farm manager walks out without the required notice.
What Does the Law State?
If your employee resigns without working the required notice period, do not deduct any money from his or her pay. First, seek employment law advice on the matter. The Basic Conditions of Employment Act (BCEA) does not make provision for an employee to resign without notice. Indeed, the BCEA states that the employment contract can only be terminated with notice of a minimum of one week, if the employee has been employed for six months or less at the particular employer. As such, even if the employee has only worked at your business for a month, the employee must give you at least one week’s notice. This means that you can hold the employee responsible for the period of notice not worked. We will provide advice on the above later in the article.
The employee must give notice of at least two weeks if they have been employed for more than six months, but less than 12 months. If the employee is a domestic worker or farm worker who has been in your employment for more than six months or any other employee who has been employed for more than 12 months, then a notice period of four weeks applies.
For understandable reasons, you might want to deduct the money for the notice period not worked from the employee’s money that is due. However, your only recourse is to sue the employee for damages. You must still pay the leave money due and any other money due upon termination of the employment. This is unless you protect against 24-hour or no notice in your contract. To this end, we recommend seeking law advice about the wording of the contract.
Even if you are allowed to deduct money, it will still be a loss to you, as the money due may not be enough to cover the loss of income resulting from the employee’s failure to work the required notice period. This can be especially problematic if the employee accepts a new position and walks out just after payday, leaving you very little money to deduct. The situation becomes even worse if there are no leave days accrued.
It is against the law for the employee to do so, but even if you sue the employee for damages that you can quantify, if the employee only receives minimum wage, it might not be worth your while. Fortunately, you can ensure a deterrent against such walkouts in your contract.
You can stipulate in the employment contract that should the employee terminate the agreement without giving the minimum required notice according to the period worked, you are entitled to deduct the remainder of the notice period money from any money due to the employee. It is imperative to word the contract to be legislatively compliant and to this end, we recommend seeking labour law advice on the matter. Even though you cannot redeem the damages suffered in such a manner and must still sue the employee if you want the damages paid, you can at least deduct money for the notice period not given and/or worked.
When the employee signs the contract, the employee agrees to the terms and is legally bound to them. You are thus within your right to deduct an amount equal to the notice period not given. Seek advice on the matter and ensure that the terms of the contract are explained to the employee, as this will also protect you and make the employee aware of their responsibility to give proper notice of termination of the employment contract.
Get in touch with our labour lawyers for employment law advice regarding the notice period and the wording of your contracts.
*This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
