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"I quit with immediate effect" What are your rights with an employee who doesn't give notice?

by , 21 September 2015
Ever had an employee resign with 24 hours' notice and then just walk out? Now you're sitting with a whole lot of problems. One of them is that now you need to replace him. Another issue is the money and time you spent training him was just a waste.

What now?

Let's look at what the Basic Conditions of Employment Act says about this...

When it comes to notice periods this is what the Basic Conditions of Employment Act says
You can terminate an employment contract only on notice of not less than-
(a) One week. If the employee works for six months or less;
(b) Two weeks. If he works for more than six months, but not more than one year; and 
(c) Four weeks, if the employee-
  (i) Works for you for one year or more; or
  (ii) Is a farm worker or domestic worker who works for more than six months.
These statutory stipulations are all very well, and you know what the law says. But where does this leave you when the employee walks out on 24 hours' notice?
Let's see what the Court says…
In the case NATIONAL ENTITLED WORKERS UNION v COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION & OTHERS (2007) 28 ILJ 1223 (LAC) the union had an employee who left them without giving notice.
  • The union wanted the Labour Court to rule that this was an unfair labour practice against them. 
  • The court didn't agree with this point of view. But it said the one recourse it had is to sue the employee under common law for breach of contract. 
  • The law doesn't give the employer any recourse against employees who don't honour the contracts. Well, nothing in terms of labour legislation anyway.
  • The option is for the union to sue and issue summons against the employee. As well as for any damages you can justify in terms of the employee's breach of contract.
Here's how to use the latest conflict management techniques to successfully manage conflict in your workplace
There's no company that doesn't have conflicts between employees.
All studies show that in any company, without exception, tension, dissatisfaction, frustration, nerves, threats of resignation are part of everyday life. Conflicts are a reality and they can be divided, generally into two categories:
Conflicts with company processes and procedures. This refers to employees applying certain ideas and working procedures in doing the job itself.
Employee conflict. This refers to personality differences between employees.
You, as the manager should handle these quickly and efficiently. Else they will cause a bad atmosphere in the workplace, lack of employee motivation and loss of concentration. These will all lead to wasted time and financial loss. Don't let this happen to you!

But, does the employee pay?
There seems to be a new practice creeping in with employees ending their employment contract with 24 hours. In most cases, they're bound to give you one month's written notice. Sometimes employment contracts say one month or four weeks. In other cases contracts say one calendar month.
Whatever the case, there's an undesirable practice creeping in. Employees often ignore this contractual requirement, and they either give 24 hours' notice, or in some cases, they give the notice their contract requires in writing, but then walk out and just don't come back. This leaves you stranded without an employee to do the work you need. And the employee is now in breach of contract.
In the past, you could deduct one month salary from the final pay out due to the employee. But in most instances, the employee gives his 24 hour notice the day after payday. And often there's no leave pay due so you can't even deduct his. This means he leaves you high and dry without any way to recover your losses, if any.
The question is: How illegal is it for an employee to walk out with 24 hours' notice? 
The answer is that it is totally illegal. Nowhere in the BCEA does it say an employee can terminate his employment contract on 24 hours' notice. So you must handle this as a breach of contract.
But, what does this mean for you?
In order to protect yourself from this, you must cover yourself in your employment contracts. Include a clause that says, if an employee terminates the contract without giving the proper notice, you'll deduct an amount equal to the period of notice he didn't give from the final payment you'll pay him. 
By including this in your employment contracts, it becomes part of the agreement between the two of you. It also becomes a condition of employment. Which means he's legally bound to follow this, and if he doesn't, you can deduct the amount.
If you don't have this, you can't deduct any money from the final payment due to the employee. You'll have to pay him in full and then sue the employee civilly (in terms of breach of contract) for any damages you want to recover. You'll also have to sue him if you've paid him already and need to recover an money.
Make sure you never run into this problem… And include a clause in your employment contracts starting today!

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