The resignation of an employee needs to be handled with great care correct. When an employer and employee enters into a contract of employment, one of the terms and conditions deals with the required termination period of the relationship. The Basic Conditions of Employment Act (BCEA) regulates and prescribes statuary notice periods depending on the length of service. The BCEA further dictates that notice of termination of an employment contract must be in writing, unless given by an illiterate employee.
But what if your employee resigns without doing it in writing and later submits a dispute to the CCMA for an “unfair reason for dismissal”?
The resignation isn’t valid if the employee doesn’t give proper notice. The employer can decide whether or not to waive compliance with the notice period or hold the employee to the notice period. It is important that the employer records the resignation and the notice period.
Useful tips when dealing with a resignation
- Always have the resignation in writing.
- Confirm the resignation and the acceptance of the resignation in writing to the employee. This will safeguard yourself against a possible CCMA award.
- Clearly record and advise the employee of the last working day, even in the event of the employment contract coming to an end immediately.
- The employee is entitled to receive a certificate of service, irrespective of the reason for termination of employment.
- If the employee resigns without giving the employer notice as required by law or in terms of the employment contract, the employee is in breach of the contract. In this situation the employer does not have to pay. An employer can either hold the employee to what is left of the contract or cancel and sue for damages.
- An employee cannot take leave during the notice period.
- An employer waiving the employee’s notice period must pay the employee notice pay unless the employer and the employee agree otherwise. This can be successfully implemented to protect business information, client contracts and potential risk of the disclosure of this confidential information.
Contact us for more information and assistance in this matter.
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LWO Regsadviseur - LWO Legal Advisor
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