Whenever an employee resigns from his current work place, the company requires a certain amount of time to find a suitable replacement, hence the need for notice periods. Simply and easily defined, the 'notice period' one serves after resigning from a position is often not well understood.
Section 37 of the Act provides that termination of employment at the instance of a party to the contract may be terminated only on a notice of not less than:
One week, if the employee has been employed for six months or less;
Two weeks, if the employee has been employed for more than six months but not more than one year;
Four weeks, if the employee has been employed for one year or more or, in the case of a farm-worker or domestic worker, employed for more than six months.
That these notice periods are the minimum and may not be shortened by any agreement. However, section 37 (2) (b) does provide that a collective agreement may permit the notice period of four weeks to be reduced to not less than two weeks. The employer may not impose on the employee a notice period that does not also equally apply to the employer. In other words, if the employment contract stipulates that the employee must give 2 months notice for termination of the contract, then the employer must also give the employee two months notice if the employer wishes to terminate the contract or dismisses the employee.
There is much more that goes into your notice period than what is provided for by the BCEA (Basic Conditions of Employment Act) definition. This is completely understandable because if you are either handing in your notice, or receiving your termination notice, it is generally a very stressful situation. Obviously every situation varies but they all come with very strong emotional attachments. Whether you despise your current company and cannot wait to leave or if you are very excited about your new opportunity but fearful to hand your notice to an intimidating boss, or even if you're leaving a wonderful company and trying not to hurt a boss that has been very good to you. The list goes on. At the end of the day, one need's to make a well thought out and calculated decision when resigning, rather than an emotional one.
Most contracts will contain a notice period clause similar to the following:
There is a 1 (one) week notice period either way upon termination of contract
There is a 2 (two) week notice period either way upon termination of contract
There is a 1 or 2 month (30 days or 60 days) notice period either way upon termination of contract
There is a 1 Calendar Month notice period either way upon termination of contract
The above are all rather self explanatory except for the 'Calendar Month' notice period. With a Calendar Months Notice, the notice period actually only starts from the 1st day of the month, in other words you must give a full calendar month's worth of notice. As an example, should you resign on the 25th day of the month, you are actually giving 35 days worth of notice as it will only be effective from the 1st of the next month. Companies often specify a calendar months notice if you have specific, specialised tasks that you perform during the month.
The best example of notice period clauses in contracts also seems to be the most popular:
"During the first 3(three) months of employment, the employment contract may be terminated with 2 (two) week's notice. After 3 (three) months of employment, the notice period is 1 calendar month's notice. Notice of resignation/termination must be given in writing"
Says Ryan Cousins, Branch Manager of RecruitFIN: "I provided the above example to highlight a couple of very important facts regarding notice periods. Firstly, if you compare the above example of a notice period with the definition of the pervious notice period given by the BCEA, you will notice that 1 calendar months notice is required after just 3 months rather than a full year as in the case of the BCEA. In this case, a signed contract would signify a collective agreement and the Longer of the two notice periods would actually apply. Secondly, it is very important to notice, (as mentioned previously) "an employer may not impose on the employee a notice period that does not also equally apply to the employer" Just as you are required to give the stipulated notice, so too is the employer required to give you the identical amount of notice."
While working on your notice it is also very important to realise that as an employee you are prohibited from taking leave during your notice of resignation, and the employer is prohibited from forcing the employee to take leave during any period of notice. Unless otherwise agreed to by both parties. Section 20 (5) (b) of the BCEA states clearly that "the employer may not require or permit an employee to take annual leave during any period of notice of termination of employment." Should there be annual leave outstanding the employee is entitled to be paid out for any period of annual leave that he has accrued in terms of section 20 (2).
All of the above is well and true, however, the handing in and subsequent working of your notice period generally comes down to the relationship between to you and your employer. The age old adage of, "never burn your bridges" applies here more than ever before. Apart from it actually being a legal requirement, as an employee, the correct handling of your notice period not only ensures a possible good future good reference but also indicates to your future employer that you are respectful in terms of process and one day he could expect the same behaviour from you should you ever have to resign from that company.
To summarize, notice periods are important to both parties of a contract. It allows the employer adequate time to find a suitable replacement and it allows the employee to not only close off any remaining work, but also to the do appropriate handover of current tasks. The law is very specific with regards to notice periods and it should not be ignored. It is important for you as an employee to understand what is required from you and the processes you should follow to make the successful transition from one company to another. Also, by being aware of what your notice period entails, you can avoid being abused by an unscrupulous boss demanding that you work way beyond what your notice period stipulated. So remember, just as there are two sides to a coin, the phrase; "never burn your bridges" applies to not only what you are leaving behind but also to what you are building towards - know your rights.
Ryan Cousins - Branch Manager - RecruitFIN RecruitFIN - part of The RecruitGroup 58 Thembi Place Calderwood Road Lonehill Johannesburg 011 465 3360
