Basic Conditions of Employment: Termination of Employment

Summary

  • No worker may be retaliated against for demanding the rights set out in the Basic Conditions of Employment Act
  • Senior managers, traveling sales staff, and those that work under 24 hours per month excluded, employees may not work for more than 12 hours of overtime each week
  • An extended weekend may be arranged by way of a compressed work week of no more than 12 hours per day
  • Any employee agreeing to work an 11pm to 6am shift must be debriefed on the health and safety risks, as well as compensated for regular medical examinations
  • Employer may not take annual leave hours away from employees while they are enjoying  special leave privileges such as maternity or sick leave 
  • Family responsibility leave may be taken on account of the birth or sickness of a child, or the death of a spouse, child, parent, grandparent, grandchild, or sibling
  • Deductions may only be made from an employee’s pay if they are agreed to in writing and are either a legal requirement, or part of a collective agreement, arbitration award or court order.
  • Four weeks notice must be provided employees of more than one year before termination of their labor contract
  • Employees must be permitted to challenge their dismissals on the basis of established labor policy
  • Collective agreements via the Bargaining Council may differ from the Act as long as worker protection is not reduced as regards health, safety, or family responsibilities
  • In addition to investigating complaints, Labor Inspectors must notify employees of their rights and responsibilities

Your Rights

The Basic Conditions of Employment Act applies to all employees and employers in South Africa except those who work for the National Defence Force and Intelligence Agencies, on vessels at sea and unpaid volunteers working for charities.

The Act does not cover:

  • Probationary periods; right of entry to the employers premises;  afternoons and weekends off; pension schemes; training or school fees; funeral benefits and savings accounts. However, all of these can be negotiated and included in an employment contract.
  • There is also no provision which prevents any other conditions of employment being included in a contract but any provision that sets conditions which are less favourable than those set by the Act, will be considered INVALID.

Termination of Employment

Notice

An employee or employer must give notice to end an employment contract of not less than:

  • 1 week, if employed for four weeks or less
  • 2 weeks, if employed for more than four weeks but not more than one year;
  • 4 weeks, if employed for one year or more.

Notice must be in writing except from an employee who cannot write.

Payment instead of notice – an employer may pay the remuneration the employee would have received had they worked out the notice period. If an employee gives notice and the employer waives any part of that notice, the employer must pay the remuneration referred to above, unless the employer and employee agree otherwise.

Employees who stay in employer's accommodation must be given 1 month's notice of termination of the contract or be given alternative accommodation until the contract is lawfully terminated.

An employer giving notice may not stop a worker from challenging the dismissal in terms of the Labour Relations Act or any other law.

Severance pay

An employer must give an employee who is dismissed due to operational requirements at least 1 week's severance pay for every year of continuous employment. In the event of a dispute or disagreement, the employee may refer a dispute to the CCMA for resolution

Certificate of service

When a job ends, an employee must be given a certificate of service.

Procedure

Although the contact of employment makes provision for the termination of employment, the services of an employee cannot be terminated unless a valid and fair reason exists and fair procedure is followed.  If an employee is dismissed without a valid reason or without a fair procedure the employee may approach the CCMA for assistance.

Pro- rata leave and severance pay might be payable.

In the event of a worker being unable to return for work due to disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to accommodate the employee as far as possible - for example, amending or adapting their duties to suit the disability.  However, if this is not possible, then an employer may terminate the services of the worker.