Many an employer has had to contend with the 24-hour notice problem. What usually happens is an employee is appointed and then trained at a cost to the employer.A contract of employment is signed which normally has a clause stating that a month’s notice should be given at termination of the contract by either party. Then one morning the employee gives notice, in writing or not, and they want to leave the next day.
Now the employer sits with a number of problems of which at least one is that they must replace the employee. The greater frustration is that all that well spent money on training and development is down the proverbial drain. What now? Let us look at the Basic Conditions of Employment Act of 1997 to ensure what the legislature had in mind. Section 37 deals with notice periods at termination and states:
(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than-
(a)one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more than one year;
(c)four weeks, if the employee-
(i)has been employed for one year or more; or
(ii)is a farm worker or domestic worker who has been employed for more than six months.
These statutory stipulations are all very well – but where does this leave the employer when the employee has simply walked out on 24 hours notice ?
In NATIONAL ENTITLED WORKERS UNION v COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION & OTHERS (2007) 28 ILJ 1223 (LAC) the union employed an employee who left them without giving notice
They wanted the Labour Court to determine that this was unfair labour practices perpetrated against them.The court did not agree with this point of view. The court confirmed that the one recourse for employers is to sue the employees under common law for breach of contract. The legislature did not give the employer any recourse against such employees who do not honour the contracts – at least there is no recourse in terms of labour legislation.
The option is for the employer to sue and issue summons against these employees, for any damages that the employer is able to quantify in terms of the employees breach of contract.
24 Hours Notice: Does the employee pay?
Judging by e-mails that I receive, there seems to be a new practice creeping in among employees who wish to terminate their employment contract.In most cases employees are bound to provide the employer with 1 month written notice. Sometimes it is stipulated in the employment contract merely as 1 month or 4 weeks, and in other cases it is stipulated as 1 calendar month.
Whatever the case, the undesirable practice that is creeping in, is that employees are ignoring this contractual requirement, and are either tendering 24 hours of notice, or in some cases are tendering the contractual notice period in writing and but then walk out and simply do not return to work. The employer is then left stranded without an employee to do the work in the vacated post, and the employee in fact is now in breach of contract.
It has always in the past been the practice for the employer to deduct one month salary from the final payout due to the employee, but in many cases the employee tenders 24 hours notice the day after payday, and in many cases there is no leave pay due and thus the employer is left high and dry with no means of recovering his losses, if any.
The question is, how illegal is this practice of the employee walking out on 24 hours notice? The answer is that it is totally illegal – nowhere in the BCEA is their any provision allowing an employee to terminate his employment contract on 24 hours notice. The employer must handle this in terms of breach of contract.
In order to protect themselves, employers must stipulated in the employment contract that should the employee terminate the employment contract without tendering the written contractual notice period, then the employer will deduct from the final payment to the employee, an amount equal to the period of notice not given.
By including this as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment which the employee is then legally bound to follow and should he/she not do so, then the employer can make the deduction accordingly.
If this condition is not stipulated in the employment contract, the employer may not deduct any monies from the final payment due to the employee but must pay the employee in full and then sue the employee civilly (in terms of breach of contract) for any damages the employer may wish to recover.
The problem is, and especially with lower paid employees, the amount to be claimed will in many cases be far less than the amount of the legal costs incurred in the recovery, and in these cases the employer will end up by simply ignoring the matter and are losing out.
It is far wiser for the employer to protect himself in a written contract. There are those employers who never provide their employees with any form of written contract, and these employers will have a problem should the above occasion arise.