Termination by the worker:

Termination with Notice

A worker on a fixed term or continuous contract can terminate their contract of employment by giving the employer notice as per the notice period stipulated in their contract, if no notice period is stipulated then the notice period of one month as per the Employment Act is to be given. [see section 60(1) of the Employment Act]

The notice period must be worked by the worker or if the worker does not wish to work the notice period the worker has another option. The worker may make a payment to the Employer corresponding with the period of notice required to be worked. If the worker will work part of it only, then the payment for the part not worked must be made for the remaining part of the notice period that is not worked. So, if the notice period is one month, the worker must either work that period, or pay the Employer the equivalent of one month of his salary instead of working the one month. It must be paid or it must be worked. [see section 63 of the Employment Act]

The worker cannot decide on his own to substitute his annual leave for notice period. The requirement is to work (so to be physically working) or to pay. What the worker can do is approach the employer and try to mutually agree with the employer to substitute the workers annual leave for serving his notice period. There is no duty for the employer to agree to this.

If a worker does not serve their notice period and terminates their contract with immediate effect not as a result of a breach by the Employer of the terms of the contract or of the terms of the Employment Act the worker will owe the employer notice. The employer can then deduct the notice period off of the workers employment dues. [see section 33(3) of the Employment Act]

Termination with Immediate Effect

The only time where the worker does not need to give notice and can terminate their contract with immediate effect is if the employer has breached the contract of employment or breached one of the provisions of the Employment Act and in both instances that breach must justify immediate termination of the contract. The worker must do this in writing and state the reason for immediate termination. [see section 60(2) of the Employment Act]

Termination by the Employer:

It is a much longer and more complicated process for an Employer to terminate the contract of a worker.

Termination with immediate effect

An immediate dismissal is only permitted if the worker commits a serious disciplinary offence and even then, the dismissal can only be after an investigation that must be carried out by the Employer and the worker must be given a chance to explain himself. All of this must be documented and reach a standard where an employment tribunal from an objective stand point, when assessing all the proof available will also conclude that a serious disciplinary offence was committed and that an instant dismissal was justified in the circumstances.

The negotiation procedure (explained below) does not apply for immediate termination as a result of a serious disciplinary offence. [see section 57(4) of the Employment Act]

Termination with notice

This is the much longer and more complicated process and one that most employers are not fully aware of. Leaving aside redundancy, layoff, variation of contract, change of ownership of the business and instant dismissal as a result of a serious disciplinary offence, the following is an explanation of what process must be followed.

The Employment Act restricts the termination of fixed term contracts and continuous employment contracts and places a requirement on the Employer to FIRST follow the negotiation procedure. [see section 47(1) of the Employment Act]

The negotiation procedure is found in Schedule 1 Part A of the Employment Act. This part requires the employer to notify the Department of Labour FIRST of its intention to terminate the workers contract. Within seven (7) days from that notification, a competent officer from will discuss with the employer ways (if any) to avoid (or minimize the effect of) the termination of the workers contract. If the reason for termination is one that is specifically related to the worker, for example the workers competence or loyalty, the Competent Officer will hold discussions in the presence of the worker as well. The Competent Officer must make his decision on whether to approve the application within twenty-one (21) days from the initial notice of the employer’s intention to terminate the employment contract of the worker. This decision will be communicated to both employer and worker. The employer must then wait a further twenty-one (21) days from the decision of the Competent Officer (if the decision was to allow the termination) before the employer can give notice of termination of the employment contract to the employee. Payment in lieu of notice can also be made. Hence why the negotiation procedure is said to last 42 days, only after that can you give the worker notice to terminate his contract and this is only if the Competent Officer has decided that the contract can be terminated.

Both the employer and the worker have a right to appeal the determination of the Competent Officer and must exercise that right within fourteen (14) days from receiving the notice of the decision of the Competent Officer. If the approval was given to terminate the contract of employment, the Competent officer will also decide what compensation is payable. [see section 47(2) of the Employment Act].

A word of caution – many employment contracts contain a clause to the effect that the employer may terminate the contract of the worker by giving the worker one month’s notice [in some contracts two-months’ notice] or by making payment of the equivalent in lieu of notice. This clause is in breach of the legal provisions set out in the Employment Act. The Employment Tribunal has been faced with this type of case and has decided that termination was unlawful because the negotiation procedure was not followed. [see the decision of the Employment Tribunal in N. Adonis v Big Blue Divers (PTY) Ltd delivered on 29 August 2019]

Lastly – the above are very general guidelines, each of your circumstances are different and even small differences often lead to different conclusions. It is therefore a MUST for each person to seek legal advice in any law related matter before making any decisions.