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Can Mary resign while she's on maternity leave?

by , 16 April 2014
Picture this... It's Monday morning. You get a call from Mary who's on four months maternity leave. She tells you she's resigning and wants to move to greener pastures. And then she drops the phone. You're now wondering if it's legal for an employee on maternity leave to resign. Read on to find out the answer so you can comply with the Basic Conditions of Employment Act (BCEA)...


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It's true: Your employee IS allowed to resign while on maternity leave

While Mary does have the right to give you notice in advance of her intention to resign, her notice period can't start while she's on maternity leave.

This means, her notice period will only start on the day that she's due back at work following the end of her maternity leave.

The Labour Law for Managers Loose Leaf Service explains that once she officially returns to work and her resignation is accepted, she'll begin to work in her full notice period. It's your choice if you want her to work her full notice period or you can pay her in lieu of notice (Section 38, BCEA).

But there's more you need to know about this situation…


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Keep this in mind when it comes to maternity leave and resignations

Business Publisher Rachel Paterson, explains on the Labour& HR Club that nothing stops your employee from resigning while she's on maternity leave, but, employers aren't allowed to give notice of termination of employment when the employee is on maternity leave.

She says, 'notice of termination of a contract of employment given by an employer must not be given during any period of leave to which the employee is entitled. [And] This includes maternity leave (chapter 3 of the BCEA).'

Well there you have it. Now that you know what the BCEA says about maternity leave and resignations, make sure you comply.

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Aimee 2014-08-24 20:46:38

What happens to the accrued leave earned while on maternity? Does this need to be taken or paid out during notice? What if the employee and employer agree that notice does not need to be worked? Is the accrued leave paid out then?

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