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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.
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