We are all creatures of habit. Just think, you are downloading the latest upgrade for any number of software. Before you can continue you are prompt by a pop-up-and tick box to decide whether or not “I agree to the terms and conditions”. What do you do? Most of us just tick as we do not have time to read the terms and conditions and we really just want the download to finish so that we can continue using the software.
Tell me it is not true! Now taking it one step further, who of you really-really read your Letter of Employment/Contract of Employment before you initial and sign agreement to the terms and conditions set out there in? This includes notice periods upon termination.
Your Contract/Letter of Employment should provide for a “Termination/Notice” clause.Many of us read over this and sign without giving it another thought. Regardless of whether you have read it-or not the term will be binding. Some contracts provide for a three-month notice; a month’s notice and even one-to three months’ calendar notice.
Having said that, if your contract/letter of employment prescribe a month’s notice or a calendar months’ notice you are contractually bound by these terms. Just for clarity, a calendar months’ notice must be given on the 1st day of a month. This was confirmed by the Labour Court in March 2009 in the matter South African Music Rights Organisation Ltd v Mphatsoe  7 BLLR 696 (LC).
The Court examined the language of the contract and found that ‘month’ was used throughout the contract but was qualified as ‘calendar month’ only with reference to the notice of termination. As a result, the court confirmed that the employee was obliged to give notice of termination that would take effect on the first day of a month and run to the last.
All contracts/offers/letters of employment have a termination/notice clause. And should your contract/offer/letter of employment be silent in terms of notice periods this aspect is governed by the Motor Industry Bargaining Council (MIBCO) Main Collective Agreement (Agreement).
MIBCO prescribes in Clause 7.1 of this Agreement the do’s and the don’ts in regard to giving notice when an employee or employer terminates the employment relationship and the Contract/Letter of Employment is silent in this regard. Bear in mind this is under normal circumstances and not when one is dismissed for misconduct.
The most crucial points are:
Termination when facing Disciplinary Action
In the latest Labour Court judgment, Coetzee v Zeitz Mocaa Foundation Trust and Another  9 BLLR909 (LC) (14 June 2018), Rabkin-Naicker J confirmed that an employer has an election as to whether or not to hold an employee to the contractual or statutory notice period and to discipline such employee during the notice period.
Before you resign, ensure that you familiarise yourself with the contractual-or statutory obligation in regard to the notice you should give.
Therefore, when you resign and do not wish to tender notice, you have to obtain proper confirmation of acceptance from your employer to waive notice. Failing which you might be held liable for the monetary value of the notice not tendered. Also of importance is to note that when you resign prior a disciplinary hearing/inquiry, the employer may elect to continue with the procedures during your contractual-or statutory notice periods and you might still be found guilty in your absence.