If your employee has signed a contract of employment, it will usually have notice periods aligned with Section 37 of the Basic Conditions of Employment Act of 1997, that (subject to our labour laws that require due process before one can simply terminate a contract on notice or otherwise) the contract may be terminated only on notice of not less than-
1) one week, if the employee has been employed for six months or less;
2) two weeks, if the employee has been employed for more than six months but not more than one year;
3) four weeks, if the employee-
a) has been employed for one year or more; or
b) is a farm worker or domestic worker who has been employed for more than six months.
What rights do you have if your employee gives, say, 24 hours’ notice and just walks out?
In terms of our labour laws, there’s nothing you can do. Our courts have held that the employer’s only recourse is to sue the employee, under common law, for breach of contract. (National Entitled Workers Union V Commission for Conciliation, Mediation & Arbitration & Others (2007) 28 ILJ 1223 (LAC). Often, the employee has no assets, so it’s usually a waste of time to sue for damages, based on the employee’s breach of contract
So what should the employer do?
· Most employment contracts require an employee to give 1 month’s notice.
· If the employee gives little or no notice, the employer is left with the small comfort of being able to sue for breach of contract.
· Rather, an employer should stipulate in the employment contract that should the employee terminate the employment contract without tendering the required contractual notice period, the employer shall deduct from the final payment to the employee, an amount equal to the period of notice not given.
· It is not legal to set off leave pay, etc. against an amount equal to the period of notice not given. However, by including the above as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment which the employee is then legally bound to follow and should he/she not do so, the employer can make the deduction accordingly.