TEBOGO has been working as a manager of a restaurant for a few years.
He was recently offered a job by another restaurant, one so good he can’t pass it up.
The problem is that they need him urgently and can’t wait for him to serve his 30 days’ notice as per his employment contract.
Tebogo can’t lose this opportunity to earn and grow more than at his current job and wants to know if it’s okay for him to serve notice that’s less than 30 days.
In terms of Section 37 of the Basic Conditions of Employment Act, the following notice periods apply:
1. One week, if the person has been employed for six months or less.
2. Two weeks if the employee has been employed for more than six months but less than a year.
3. Four weeks if the employee has been employed for more than a year or is a farm or domestic worker, who has been employed for more than six months.
The Act states that notice periods can’t be less than what is set out above, but the employer and employee can agree to have longer notice periods than those set out in the Act.
Where the employee has agreed to a longer period, he can’t later want to claim the shorter notice period as set out in the Act.
The employee remains bound in terms of his employment contract.
This means Tebogo is bound in terms of the Act and his contract to serve 30 days’ notice.
The only exception that could assist him is if his employer doesn’t want him to serve his notice.
In this case, his employer would still need to pay him for the notice period and the employer’s refusal for him to work the notice period wouldn’t be considered a dismissal, as he would have resigned.
Should Tebogo resign and not work his notice period, or work less than the 30 days he is supposed to work, his employer would have the right to either:
1. Take legal action against him in terms of breach of contract.
The employer can sue
him for damages suffered due to Tebogo leaving without serving his full notice.
For instance, if money goes missing because there was no manager on sight to bank the money after Tebogo stopped coming to work.
Or loss of business that may be caused by the employer not reasonably being able to replace Tebogo with a sufficiently skilled person.
2. Deduct from the last payment due to Tebogo the value of the notice time he didn’t serve.
For instance, if he only works one week’s notice, then the employer can deduct three weeks’ salary from the last payment Tebogo is to receive.
But this can only happen if his employment contract specifically states that where an employee doesn’t serve their full notice, then a deduction can be made from the last payment due to them.
It is, therefore, clear that it would be best for Tebogo to serve his full notice period to avoid losing any money.
Whether this lost money is from his last salary or through a lawsuit, especially considering
that with legal action,
the person being sued usually has to also pay
the other party’s legal costs, should the court decide the party instituting legal action is the correct one.
