Notice Periods At Resignation : A Growing Trend ?
The employment agreement with an employee may be terminated by the death of the employee, by his/her retirement, by dismissal, by mutual agreement or at the instance of the employee (resignation).
In the event of resignation, the employee is obliged to give proper written notice of his/her resignation to the employer, which usually requires
● One week notice for up to six months service;
● Two weeks notice for up to 12 months service;
● Four weeks notice for service in excess of 12 months.
● Alternatively, such period of notice as the service agreement may require, subject thereto that the the employee and employer is afforded the same notice period.
The tendency of employees resigning without proper notice or even absconding from their positions without any notice seems to escalate on a yearly basis, causing great discomfort for employers.
My office has been overwhelmed by requests for advice as to what remedies are afforded to employers under these circumstances.
In short the employer is entitled to either :-
● Approach court on an urgent basis with an application for specific performance thus forcing the employee to render his/her services in accordance with required notice period.
● Sue the employee for any damages the employer may have suffered as a result of the employee’s breach of agreement.
Approaching court for an order for specific performance very seldom have the desired effect as it is not only very costly but also creates the situation where the employer is dependent upon the services of an employee who is not only demotivated but who may very well bear a grudge against his/her employer.
In order to decide whether it may be worth the employer’s while to institute an action for damages against an employee, the employer should bear in mind that damages does not correlate with the amount of remuneration of the employee at all but is narrowly interpreted as real damages suffered by the employer. In the event where a contractor was unable to complete his project within a specific time frame as a result of such a breach, the employee may be held liable for such damages which could literally amount to millions of Rands alternatively if the employer suffered no real damages, no damages could be claimed from the employee. Unfortunately the latter seems to be the most common occurrence, leaving the employer without any legal recourse in the event of such a breach of agreement.