Leaving a job comes with obligations and consequences. This means there’s a right and wrong way of announcing your intention to leave. Working out a notice period is a requirement of most jobs. It is the time between formal notification of leaving a job and your last day at work. Alternatively, it is the time between dismissal or notification of termination of employment and the last working day. The time duration of a notification period varies according to company requirements, employment contracts and the Basic Conditions of Employment Act (BCEA) in South Africa. 

Why Notice Period is Required

Aside from determining the correct procedures for leaving a job, a notice period protects both the employee and employer. It prevents immediate (at-will) terminations and resignations. Thereby giving employers time to fill the job with a new incumbent or negotiate an alternative package with an employee. It enables someone to wrap up projects and hand over responsibilities. Thus, it gives an employer time to ensure that a job’s requirements can be fulfilled during a period of change. 

For an employee, it protects against immediate loss of income and the threat of ad hoc dismissal. A notice period can also assist in maintaining positive relationships once an announcement to leave a job is made, as well as after they’ve left.

5 HR Advantages of a Notice Period

1. Positive workplace/company reputation.
2. Healthier employer-employee relationships.
3. Higher workplace morale.
4. Less time when positions are vacant.
5. Better continuity of production requirements.

While notice periods are a legal requirement, they are also regarded by most as common decency. In other words, it’s seen as the right, ethical or moral way of behaving that’s guided by respectfulness, fairness, and propriety. Furthermore, how one conducts oneself when leaving employment could be taken into consideration by a potential future employer. Equality, how an employer treats its staff and issues notice periods is often weighed up when considering organisational culture and fit by those applying for a job.

How Notice Periods Work

Unless otherwise stipulated in an employment contract, notice period requirements are regulated by Chapter 5 of the BCEA. In South Africa a notice period is compulsory. They are therefore inherent employment obligations for both an employee and employer. 

During a notice period, an employee is paid as per their usual pay schedule. Aside from giving an employer a reason for leaving, you are not required to go into detail.

What does the Law say about Notice Periods?

Section 37 of the BCEA stipulates the minimum time frames of a notice period. These vary according to how long someone has been employed at their place of work.

Contracts may not be terminated with less notice than:

• One week for an employee who has worked for 6 months or less.
• Two weeks for an employee who has worked for more than 6 months but not more than a year.
• Four weeks for an employee who has worked for one year or more.
• Four weeks for a farm or domestic worker that’s worked for more than 6 months.

Unless there are extenuating circumstances, it is illegal for an employee or an employee to give an immediate or 24-hour notice period. Failure to follow the minimum BCEA or contractually stipulated notice periods can result in legal action. This is because, under the BCEA such actions are deemed a breach of contract. If extenuating circumstances are claimed then they may be subject to scrutiny. For example, resigning with immediate effect due to stress is legally allowed and falls under constructive dismissal. However, the burden of proving intolerable stress and therefore resignation being the only option lies with the employee. It is wise to remember that often resigning with immediate effect can have professional repercussions when applying for alternative employment. If you are questioning what would be best for you, then it is wise to seek legal counsel from a reputable lawyer, such as Key Recruitment Group’s labour law advisor, Britney Theron.

Notice Periods Without Contracts

All employers are required to have a contract with their employees. However, in South Africa, even when no formal written employment contract exists, the employer-employee relationship is governed by statutory notice periods outlined in the Basic Conditions of Employment Act (BCEA). These rules ensure both parties have clarity and protection during termination.

When does a Notice Period Start

Depending on your employment contract, a notice period could start immediately, according to a calendar month or as agreed between you and your employer. A calendar month can be interpreted in two different ways. Either as the first to last day of a month or a specific day in one month to the same date in the next month. For example, from the 26th of June to the 25th of July both dates inclusive. 

What is Garden Leave?

The term garden leave is a figurative term for the time post resignation or termination until the last day of work. What it means is that an employee is seeing out their notice period, but they are not actually at work. Essentially, they continue to be paid but are deliberately kept away from their place of work. As such they are not required to complete projects or allowed to communicate with colleagues or clients. They are also not allowed to work for an alternative employer during this time. 

Notice Periods and Leave

Unless otherwise agreed or stipulated in a contract, an employee cannot be required to take their leave during their notice period. Accordingly, an employer is therefore obligated to pay them out for any days of leave that have not been used. This also means that an employer is not required to grant annual leave requests when an employee is working out their notice period. Provided an employee has sick leave available, if needed, they are allowed to take it during their notice period.

How do You Give Your Notice?

South Africans are required by Section 37 (4) (a) of the BCEA to submit their resignations or termination of employment in writing. Handing in your notice or being issued a notice period cannot be rejected by the party receiving it.

Requirements of a Resignation Letter

1. Your full name.
2. Date of handing in of intention to leave.
3. Name and address of manager and company.
4. Stipulation that termination of employment is being given. For example: I wish to hand in my notice.
5. Notice period. For example: effective from 26 June 2024.
6. Your signature.

Key Points to Remember about Notice Periods

For employers it’s always best to have a formalized contract. If there isn’t one in place an employee can and should request a written statement of particulars. At all times the BCEA notice periods are applicable. In the absence of any formal contract they become the default notice framework. Termination notices have to be served in writing, except for illiterate employees. For them, and employees who cannot understand the notice, it must be explained orally in a language they understand.

Special Considerations

• Verbal Agreements: While verbal contracts are legally binding, disputes become harder to resolve without written terms.
• Permanent Employment: Without a fixed-term contract, employees are presumed permanent, entitling them to full BCEA protections.
• Sectoral Variations: Some industries (e.g., domestic work) have additional protections under Sectoral Determinations.

Consequences of not following the BCEA requirements for an employer include potential CCMA dispute settlements and unfair dismissal claims. For an employee they include breach-of-contract claims, salary deductions and legal action in the event of employer losses. Practically, immediate resignation without cause is a breach-of-contract. Except in cases of constructive dismissal, intolerable work conditions, health/safety risks and mutual agreement between employer and employee.

Key Recruitment Employer Services

Part of the Key Recruitment Group’s Recruitment Service offerings is to help companies ensure that they are compliant with South African labour laws. This takes the stress and distraction of ensuring adherence to the nuances of employing staff from managers. It also provides company HR with a reputable sounding board to discuss labour and contractual matters. Contact us today to find out how we can partner with you.