Many employers experience that an employee resigns with 24 hours notice and then just walks out. This causes problems to employers in that they now have to replace the employee as well as the money and time spent in training the employee have been wasted.
What does the employer do now?
The Basic Conditions of Employment Act (BCEA) stipulates that an employment contract can only be terminated on notice of not less than:
- One week, if the employee works for six months or less;
- Two weeks, if the employee works for more than six months, but not more than one year, and
- Four weeks, if the employee –
- works for one year or more; or
- is a farm worker or domestic worker who works for more than six months.
These statutory stipulations are all very well, but where does it leave the employer when the employee walks out on 24 hours notice?
What the Court says
In the case National Entitled Workers Union v Commission for Conciliation, Mediation & Arbitration & Others (2007) 28 ILJ 1223 (LAC) the union had an employee who left them without giving notice.
- The union wanted the Labour Court to rule that this was an unfair labour practice against them.
- The court did not agree with this point of view, but it said the one recourse it had is to sue the employee under common law for breach of contract.
- The law does not give an employer any recourse against employees who do not honour their contracts – nothing in terms of labour legislation anyway.
- The option is for the union (as employer) to sue and issue summons against the employee as well as for any damages the union (as employer) can justify in terms of the employee’s breach of contract.
Does the employee pay?
It happens often these days that employees end their employment contracts with 24 hours. In most cases, they are bound to give an employer one month’s written notice. Sometimes employment contracts require one month or four weeks. In other cases contracts state one calendar month.
Whatever the case, there is an undesirable practice creeping in. Employees often ignore this contractual requirement and they either give 24 hours’ notice, or in some cases, they give the notice their contract requires in writing, but then walk out and just do not come back. This leaves the employer stranded without an employee to do the work the employer need and the employee is now in breach of contract.
In the past, the employer could deduct one month’s salary from the final pay due to the employee, but in most instances the employee gives 24 hour notice the day after payday. Often there is no leave pay due so the employer cannot even deduct this. This means the employee leaves the employer high and dry without any way to recover losses, if any.
How illegal is it for an employee to walk out with 24 hours’ notice?
The answer is that it is totally illegal. Nowhere in the BCEA does it say an employee can terminate his employment contract on 24 hours’ notice. So the employer must handle this as a breach of contract.
What does this mean for the employer?
In order to protect itself from this, the employer must cover itself in its employment contracts. It would be advisable to include a clause that says, if an employee terminates the contract without giving the proper notice, the employer will deduct an amount equal to the period of notice the employee did not give from the final payment due to him.
By including this in employment contracts, it becomes part of the agreement between the employer and the employee. It also becomes a condition of employment, which means the employee is legally bound to follow this, and if he does not, the employer can deduct the amount.
If the employer does not have this, it cannot deduct any money from the final payment due to the employee. The employer will have to pay him in full and then sue the employee civilly (in terms of breach of contract) for any damages it wants to recover. The employer will also have to sue the employee if he has already been paid and need to recover any money.