Resignation: What You Need to Know Before Leaving Your Job

By Jessie Taylor

South Africans may have traditionally resigned from their jobs to pursue better work opportunities or for better remuneration. But, as workplaces around the world experience increased resignation rates, it’s clear that the South African workforce is now leaving employers for flexible work structures, healthy working environments, and opportunities for personal development. But if you’re considering resigning from your job, there are a few details to consider.

Notice Period

Resignation is covered by South African legislation, and the Basic Conditions of Employment Act does not make provision for a notice period of less than one week. According to the Act, a notice period may not be less than one week if the employee has been employed for six months or less, two weeks if the employee has worked for more than six months but not more than one year, or four weeks if the employee has worked for one year or more. A four-week notice period is also required if the employee is a farm worker or domestic worker who has been employed for more than six months.

This means that no employment contract may allow for a notice period shorter than one week. However, if both the employer and employee agree, the notice period may be longer than the minimum. This longer notice period will need to apply to both parties. Longer notice periods should be carefully considered, as they may prevent an employee from taking up a new post or place an additional burden on an employer. In addition, if a longer notice period is agreed on, employers and employees cannot later claim the Act only requires the minimum period.

Resignations Must Be In Writing

According to law, a notice of termination of employment, including a resignation, must be in writing. An indication of intent to resign, such as a verbal confrontation, does not count as a resignation. A written resignation can be sent in publishable form, including email, SMS, or Whatsapp message. Once the employer has received the resignation, they do not need to accommodate any request by the employee to withdraw their resignation should they change their mind.

Work During the Notice Period

The Act states that an employer must pay the worker for their notice period, even if they do not want the employee to work for this period. For instance, if an employee works with confidential information, an employer may not want an employee to serve their notice period as it could pose a risk to the company. In this case, the company may request the employee leave before the notice period is complete, but they will have to remuneration the employee for the period. However, if the employee indicates that they are not willing to work during the notice period, the employer does not have to pay them for the time they do not work.

Leave and Resignation

The law states that a termination of a contract of employment given by an employer may not be during a period of leave or run concurrently with a period of leave.
A company may not give notice of termination of contract shortly before a period of leave so that an employee’s annual leave will run concurrently with the notice period.
In addition, an employer may not require or allow a worker to take annual leave during a notice period. Leave that is due to the employee at the time of their resignation should be paid out.

Resignation and Benefits

An employee who is a pension fund member is entitled to their benefits after resignation. They will be entitled to withdraw their entire pension in a lump sum, leave their benefits at the pension fund, or transfer them to another pension fund. However, the Pension Funds Act allows an employer to contact the employee’s pension fund to deduct an amount of money owed by that employee from their pension fund. This may apply when an employee has caused damages to the employer through fraud, theft or misconduct. In these cases, the employee would have to have admitted to it in writing or a judgment made against the employee before resignation. A person who resigns may not claim unemployment benefits from the Unemployment Insurance Fund.

Resignation and Restraint of Trade

An employer is entitled to prevent a worker from working for a competitor after the resignation, but only if a restraint of trade clause has been set out in the employment contract. A restraint of trade is a clause that aims to protect the company’s confidential information by preventing the employee from going into the same business venture with anyone else for a specified period and within a defined area. Once an employee has left a company, they are still prohibited from sharing the company’s confidential information, such as client information or financial accounts.

Disciplinary Action and Resignation

While an employee is serving their notice period, they are subject to the terms and conditions of their employment contract. If an employee resigns while facing disciplinary hearings, an employer may continue with the hearings until the employment relationship ends. If the disciplinary hearings are not finalised before the end of the notice period, they cannot continue the hearings or compel the former employee to attend them.

Sources:  Business Tech | IOL | Legal Wise | Labour Guide | Cliffe Dekker Hofmeyr

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