Termination of employment

Chapter  5 – BCEA.

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  farmworker 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 provides that a collective agreements 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 2 months notice if the employer wishes to terminate the contract or dismisses the employee.

The Act stipulates further that notice of termination of a contract of employment must be given in writing except when it is given to or by any illiterate employee. Notice of termination of employment, when given by the employer, must not be given during any period of leave to which the employee is entitled in terms of chapter 3 of the Act, and may not to run concurrently with any period of leave to which the employee is entitled, except sick leave.

Put differently, if an employer dismisses an employee, and the employee has annual leave due to him, the employer may not require that the dismissed employee take the outstanding annual leave during the period of notice. The employer is required to pay out the employee for this leave. However should the employee require sick leave during a period of notice, and he/she has sick leave days available, then the employee is entitled to take paid sick leave during a period of notice.