Termination of Employment: Notice periods and payment in lieu – A practical guide

In the dynamic landscape of employment, the termination of an employment relationship is often an inevitable part of business operations. As an employer, it is crucial to navigate the provisions regarding notice periods and payment in lieu with care to ensure compliance and maintain healthy employer-employee relationships.

The Basic Conditions of Employment Act (BCEA) stipulates minimum notice periods based on an employee’s length of service. While these minimum periods act as a foundation, employers may choose to implement longer notice periods through employment contracts or collective agreements. Just keep in mind that even if a shorter notice period is agreed to it will not be valid as the agreement may not deviate from the minimums set out in the legislation. A necessary caveat here is to take note that certain sectors specify their own minimum notice periods so a good starting point would be to establish which sector your business falls under.

As it will be the most applicable, let’s deal with the minimum notice periods as set out in the BCEA. Where the employee is employed for a period of:

These notice periods are applicable to the employer and employee, so should the employee resign this will apply as well. It happens very often that employees will resign with immediate effect or not complete the notice period, however this entitles the employer to claim and immediately recover certain damages from the employee for the shortfall period of services rendered (make sure to include this clause in the employment contract).

In some instances, employers may choose to terminate an employee’s contract without providing a notice period. This situation may arise when there are concerns about the employee’s conduct, breaches of employment terms, or severe misconduct. In such cases, employers can make a payment in lieu of notice instead.

This involves compensating the employee for the value of the notice period they would have served. The payment should reflect the employee’s remuneration, including salary, benefits, and any other entitlements. Employers must calculate this sum accurately and ensure that it aligns with legal requirements and the terms outlined in the employment contract. Hint: remember accrued leave days for the final payment.

In cases of severe misconduct, a proper disciplinary hearing will be held and the chairperson might recommend that the employee be summarily dismissed, but what is this and what do I do now? Shortly, summary dismissal is the immediate termination of employment meaning no notice or payment is applicable. Remember that this does not affect salary for days already worked or accrued annual leave pay with the final payment due to the employee.

When it comes to terminating an employee’s contract, understanding notice periods and the possibility of payment in lieu of notice is essential for employers. By adhering to contractual and statutory obligations, maintaining transparent communication, and ensuring legal compliance, employers can navigate the termination process fairly and minimise the risk of legal disputes later on.