Page 5 - KZN Business Sense- Vol5 No4

REFRESHER ON RESIGNATIONS

Patrick Deale, Labour be done in writing. The resignation period of notice.
Lawyer & Mediator, is a unilateral act by the employee Can an employer withhold
Deale Attorneys and does not need the employer’s the employee’s final salary or
acceptance. The employment
hat relationship is terminated accumulated leave pay if the
employee refuses to work for the
are
SHOWCASING THE practical mechanics immediately the written notice period?
Wthe
resignation is given and received.
No. Section 34 of the Act
WOMEN IN KZN of notice Does the employee have to work prohibits deductions from an
during the notice period?
employee’s salary without the
periods?
Yes. The Act says an employer
Resignations must pay an employee’s salary written consent of that employee.
This means the employer must still
ZN Top Business is inspire other women to follow have featured and benefits for the notice period. pay the employee even though he
proud to introduce a new their own dreams and ambitions. in several He or she must also work for the or she failed to serve notice and the
Kmultimedia initiative This initiative will culminate labour court judgements and notice period if the employer so employer suffered damages. Except
showcasing the achievements of in the Standard Bank KZN Top CCMA awards recently. They requires. But the employer has the that the employer can withhold
women in KwaZulu-Natal. This Business Women Gala Dinner, reveal quite a lot of misconceptions discretion to pay the employee in a pro-rata portion of the final
about how the mechanics of
initiative is an opportunity to which will be held on the 6 resignations are supposed to lieu of notice and require him or salary for any period in which the
recognise some of the industrious November 2019. The gala dinner work. So this is a “back to basics” her to exit before the end of the employee does not work during the
and enterprising entrepreneurs, will take place in the Southern refresher to remind us how to deal notice period. notice period.
employees and social change Sun Elangeni & Maharani, Great with resignations. Does the employer still have to What is a calendar months’ notice?
agents in the province. There Ilanga Conference room. pay the notice pay if the employee The term “calendar month” may
are many women who are The starting point is to look at refuses to work for the notice be interpreted in two ways: either
contributing both to their At the event a number of women the notice periods prescribed in period? as a month as it appears on the
workplaces and to society in will receive recognition for Section 37 of the Basic Conditions No. If the employee does not calendar, (1 January to 31 January)
amazing ways. their achievements. Obtaining of Employment Act (the Act). They want to serve the serve the full or a month reckoned in terms of
the recognition that is richly are as follows –
By profiling women through deserved will also give the women One week, if the employee has notice period, the employer one day in a particular month
the mediums of video, print, the motivation to continue with their been employed for six months or does not have to pay him or her until the corresponding day of the
internet and our various social endeavours. We also hope that less; for rest of the notice period. In next month (4 March to 4 April). 1
media platforms we will be able to these stories will inspire others to theory, the employer has the Both interpretations are possible.*
showcase their achievements in a succeed and to be recognised at a) Two weeks, if the employee has right to claim the value of the For this reason, contracts of
employment should specify what
employee’s salary for any period
holistic manner. future events. This goal is in line been employed for more than of notice not served in the civil a “calendar months’ notice” means.
six months but not more than
Our goal is for each woman to with KZN Top Business’s motto – one year; court. But this seldom happens Does an employer have to accept
tell her own story so that she may success breeds success.  b) Four weeks, if the employee-- because it’s a time-consuming a longer period of notice by the
be acknowledged for her efforts. and costly exercise. employee?
In addition, these outstanding For more information contact Tracy c) has been employed for one year When can notice be given? No. The employer only has to

or more; or
women have the opportunity to Engelbrecht at tracy@topbusiness.co.za
www.topbusiness.co.za d) is a farm worker or domestic Section 37 (5) of the Act says - accept the period of notice agreed
worker who has been employed Notice of termination of a in the contract of employment. If
for more than six months. contract of employment given by a contract specifies one months’
an employer must-- notice and the employee gives
Qs & As three months’ notice, the contract
a) not be given during any period would terminate after one month
Can the notice period be shorter? of leave to which the employee is not after three months.*
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No. The minimum period is one entitled in terms of the Act; and
week. b) not run concurrently with TIP: Employers may consider
reviewing their contracts of
Can the notice period be longer? any period of leave to which the employment to align with the
Yes. The employer and the employee is entitled in terms of mechanics of how the law on
employee can agree to a longer the Act, except sick leave. resignations is applied in practice.
notice period in their employment This means an employer may not This would help to remove any
contract. This is because the give notice of termination – misconceptions which could prove
Act only prescribes minimum ■ While the employee is off on costly when employees tender their
conditions of work. The parties are sick leave, annual leave, resignations. 
free to agree improved conditions. maternity leave or family
Once they agree, they are bound responsibility leave. * Interpretation of Statutes (Juta & Co.
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by the longer notice. The employer ■ Just before the employee goes Ltd, first edition), Professor G.E. Devenish
can’t rely on a shorter period in on annual leave so that the notice * Uthingo Management (Pty) Ltd v Shear
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the Act if it later does not want to period runs concurrently with NO & others (2009) 18 LC 7.1.1, reported in
honour the longer agreed period. Butterworth’s [2009] 6 BLLR 590 (LC).
the employee’s annual leave.
Does an employer have to Source: Article in SA Labour Guide

accept a request to withdraw a Can an employee take annual DEALE ATTORNEYS
resignation? leave during a notice period? Tel: 083 375 8771
No. Section 37 (4) (a) of the Act No. Section 20 (5) (b) of the Email: patrick@deale.co.za
says that a notice of termination Act prohibits an employer from Skype: patrick.deale
of the employment relationship requiring or allowing an employee Web:site www.deale.co.za
(includes a resignation) and must to take annual leave during a

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