How many times have you read the terms and conditions before ticking the box that binds you to them?
Now taking it one step further, did you carefully read your Letter of Employment or Employment Contract before you initialed and signed in agreement to the terms and conditions? This includes notice periods upon termination.
Your Contract or 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 calendar months’ notice.
Having said that, if your contract prescribes a month’s notice or a calendar month’s notice you are contractually bound by these terms. Just for clarity, a calendar month’s notice must be given on the first day of a month as 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 or letters of employment have a termination notice or clause. Should your contract, offer or letter of employment not specify terms of notice periods, this aspect is governed by the Motor Industry Bargaining Council’s (MIBCO) Main Collective 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 or 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
“…an employer or his employee shall give notice of intention to terminate a contract of service of not less than one week in the case of weekly-paid employees and two weeks in the case of monthly-paid employees…”
All other employees
“…an employer or his employee … who gives notice to terminate a contract of employment shall give not less than one day’s notice in the first week of employment and after the first week of employment, not less than one week in the case of weekly-paid employees and two weeks in the case of monthly-paid employees.”
“The notice referred to… shall be given in writing except when it is given by an illiterate employee, may be given on any work-day and shall take effect from the day on which it is given; and may be given on any day of the week or month…”
“The period of notice shall not run concurrently with, nor shall notice be given during the employee’s absence on annual leave or sick leave.”
Termination when facing Disciplinary Action
In the latest Labour Court judgment, Coetzee v Zeitz Mocaa Foundation Trust and Another  9 BLLR 909 (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 to a disciplinary hearing or enquiry, the employer may elect to continue with the procedures during your contractual or statutory notice periods and still possibly be found guilty in your absence.
Article by Tiekie Mocke, MISA’s Manager Legal Department.