Navigating the complexities of ending employment relationships in South Africa's strictly regulated labour environment is crucial for employers. This episode provides essential guidance on managing employee terminations to ensure compliance with applicable labour legislation and avoid unnecessary risks.
We delve into the various ways a service relationship can be concluded, including:
- Voluntary resignation by the employee.
- Dismissal of an employee following a disciplinary process.
- Dismissal due to an incapacity process, such as poor work performance or medical unsuitability.
- Retrenchment after a staff reduction process.
- The employee reaching the agreed retirement age, where service ends according to a valid contract or workplace policy.
- The expiry of a fixed-term employment contract on its stipulated end date.
- The death of the employee.
We emphasize the critical importance of following the correct procedures and maintaining the necessary supporting documentation when an employment relationship is terminated. Failure to adhere to these procedures, especially if a case is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA), can expose employers to significant financial damages of up to 12 months' salary of the employee concerned.
Furthermore, we explore the nuances of handling resignations, clarifying that an employee does not have a right to withdraw a resignation but can reach an agreement with the employer for such a withdrawal. We discuss the employer's two options when faced with a withdrawal request: either refusing it, in which case the initial resignation stands, or accepting it, allowing the employment relationship to continue without interruption. Employers are also advised to consult with employees regarding suspicious or impulsive resignations and allow for a cooling-off period to prevent potential claims of constructive dismissal or unfair labour practices.
The episode also addresses the requirements for valid resignations, noting that Section 37(4)(a) of the Basic Conditions of Employment Act stipulates that resignations must be in writing, unless the employee is illiterate. However, an oral resignation can be valid under certain circumstances if the employer can clearly prove the employee's unambiguous actions demonstrating an intent to terminate service, such as verbally resigning and leaving the premises, returning company equipment, or immediately accepting work elsewhere.
We provide practical advice on documenting an employee's behaviour in writing if they resign orally and formally informing them that the resignation is accepted as voluntary. Finally, we clarify that an employee cannot dismiss themselves; if an employee leaves service without notice or explanation (known as "dros" or absence without leave), it constitutes a disciplinary offense requiring the employer to follow a proper disciplinary process to ensure a substantively and procedurally fair dismissal. Only through resignation can an employee lawfully terminate the employment relationship from their side.