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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). This article will focus on this last condition – the resignation.

How to resign legally

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 of the following stipulations:

  • 1 week notice for up to 6 months service
  • 2 weeks notice for up to 12 months service
  • 4 weeks notice for service in excess of 12 months
  • Alternatively, a notice period as the employment agreement may require, with the condition that the employee and employer are both afforded the same notice period

A growing trend of resignations without notice

The tendency of employees resigning without proper notice, or even absconding from their positions without any notice, seems to escalate yearly. Naturally, this causes great discomfort for employers.

Our offices have been overwhelmed by requests for advice as to what remedies are afforded to employers under these circumstances.

What can an employer do when an employee resigns without notice?

In short, when an employee resigns without notice, the employer is entitled to one of the following:

  • Approach the court on an urgent basis with an application for specific performance, thus forcing the employee to render his/her services per the required notice period.  
  • Issue a Summons against the employee for any damages the employer may have suffered as a result of the employee’s breach of the agreement.

What is the best course of action for the employer?

Approaching court for an order for specific performance very seldom have the desired effect as litigation is not only very costly, but it 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.

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 do not correlate with the amount of remuneration of the employee at all, but is narrowly interpreted as real damages suffered by the employer.

For example:

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 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 the agreement.