Understanding Resignation rights under the South African Basic Conditions of Employment Act (BCEA):
In South Africa, resignation is a unilateral act by the employee that terminates the employment relationship. Essentially, when an employee submits their resignation, they are ending the employment arrangement on their own accord. This act does not require the employer's agreement or consent.
According to the BCEA, resignation involves two main components:
- The Unilateral Act: The employee’s decision to resign is a unilateral act, meaning it is carried out solely by the employee without needing the employer's approval.
- Notice Period: The employee is required to provide a notice period, which varies depending on their length of service. This notice period typically ranges from one to four weeks.
If an employee fails to provide the required notice, it constitutes a breach of contract. The employer has the option to either enforce the notice period or accept the breach. If the notice is waived, the employer must compensate the employee for the notice period unless otherwise agreed. Failure to work out the notice period may result in "no work, no pay," and employers may seek damages for any loss caused by the breach.
Key Considerations for Employers:
- Written Confirmation: Confirm receipt and acceptance of the resignation in writing. Include details about the notice period, any leave arrangements, and the final working day.
- Termination of Contract: The employment contract ends either at the conclusion of the notice period or upon waiving the notice, as applicable.
- Certificate of Service: Provide a certificate of service when the employee leaves, as mandated by the BCEA.
- Handling Notice Period: Employees should ideally fulfill their notice period unless an agreement is made to waive it. Failure to comply may result in non-payment for the notice period and potential claims for damages.
- Leave During Notice: Employees cannot generally take leave during the notice period unless expressly agreed upon. Notice cannot overlap with leave periods.
- Termination Pay: Ensure accurate calculation and payment of termination benefits, considering the employee's full remuneration package.
- Confidentiality and Return of Property: Verify that all company property and confidential information are returned. Review any confidentiality agreements or restraint clauses.
Read more about what the labour law says about resignation periods.
