ONE ANSWER TO EMPLOYEES GIVING 24 HOURS NOTICE

In my previous article,I discussed the question of Employees giving 24 hours notice of termination of employment.

Employers could include a term in the Contract of Employment that should an Employee terminate the Contract of Employment on notice shorter than as provided in the Contract,the Employer will deduct from any final payment due to the Employee,an amount equal to the period of notice not given by the Employee in terms of the Contract.

However if no monies are due to the Employee,which is often the case,the Employer is back to square one.

24 HOURS NOTICE BY EMPLOYEES

The queation is often asked if an Employee can give 24 hours notice of termination of an Employment Contract.

If a Contract of Employment is in place it normally provides the notice period to be given on termination,which is normally 30 days.

There is no provision in the Basic Conditions of Employment Act(BCEA) which provides for a 24 hour notice of termination of Employment Contracts.

So what does the Employer do if the Employee gives 24 hours notice?

It is illegal for an Employee to give 24 hours notice,but if the the Employee leaves,the Employer is not legally able to withhold any monies due to the Employee (eg. outstanding leave pay)and must pay these monies over to the Employee in terms of Section 40 of the BCEA.There is also no provision in the Labour Relations Act to proceed against the Employee in these cases.

Therefore the only way the Employer can address this scenerio with the Employee is through the normal Courts,ie. Magistrates' Court,Regional Court or High Court,depending on the amount claimed.The Employer would have to prove breach of contact,which is relatively easy if there is a written Contract of Employment,but then must prove what damages the Employer has suffered as a result of the Employee's breach.

This is where it becomes difficult,especially in cases of more junior Employees.As a result Employers do not institute legal action against Employees in these cases due to the high legal costs that have to be incurred.

LEGAL AUDITS

As we know,Private Companies with limited liability need by law to be audited by a Charted Accountant and their financials must be submitted to SARS.

However,as Companies do not by law have to be legally audited by a Lawyer,the majority of CEO's do not worry about legal audits.

A simple legal audit can,for example, highlight defects in your Human Resources Documents and Policies and your Service Level Agreements with clients.

For more information call Bryan Brett on 011 764 4280

DISMISSALS FOR POOR PERFORMANCE

Employers should be particlarily carefull before dismissing employees for poor performance.

It is the employers preogative to set performance standards or targets,but these should be attainable and resonable and this would have to proved by the employer if the employee challenges them.

Employers also need to take into account the current economic climate,for example,before setting targets for sales staff.

Employers need to conduct regular meeting with staff for poor performance counselling and detailed notes should be kept,including that of targets agreed to in these meetings.Matters beyond the control of the employee cannot be held against the employee,eg.the economic downturn.

Schedule 8 of the Labour Relations Act sets out the procedural and substantive pre-requisites of a fair dismissal.

For more information,please contact Bryan Brett.

Disciplinary Hearings

The Code of Good Practice,being Schedule 8 of the Labour Relations Act, requires that Employers must keep records of disciplinary actions taken against Employees,the reason therefor and the outcome of the action.

Even if a written warning is only valid for 6 months,never throw it away.Keep it on record in the Employee's staff file.

Should a disciplinary hearing become necessary,it is important that the hearing is chaired by an independant Chairperson,who must not show any bias,either to the Employee or Employer.Should this not be the case Employers could find that they may have to pay hefty compensation to dismissed Employees,or even re-instate the Employee,should the case go to the CCMA or Labour Court.

For more information please contact Brett & Associates

WRITTEN PARTICULARS OF EMPLOYMENT

Many Employers do not adhere to the basic fundamentals that today you need a written Contract of Employment with your Employee, as stipulated in Sec 29 of the Basic Conditions of Employment Act.

Some Employers think that by having written contracts will cause more problems than if you do not have a written contract.In fact,it is exactly the opposite.A well drafted Contract of Employment can protect the Employer in many instances,one of which relates to restraint of trade when an Employeee leaves your employment.

When one buys a house,a car or enters into an Instalment Sale Agreement,one does not think twice that the agreement is in writing.

So why should an Employment Contract be any different?

DISMISSAL OF AN EMPLOYEE-ONUS ON EMPLOYER TO PROVE PROCEDURAL FAIRNESS

The Labour Relations Act provides that the onus of proving procedural fairness when dismissing an Employee is upon the Employer.

Many small to medium size Employers do not have written Discliplinary Procedures in place and,in fact,do not understand how easy these procedures are to put in place and be compliant with the Law.

In order to avoid reinstatement of Employees or heavy penalties imposed by the CCMA due to procedures not being fair,all Employers should have written Disciplinary Procedures in place.

We are able to provide these Procedures in a simple and cost effective manner which is easily understood by both Employer and Employee.

A 10% discount will apply to all ROCCI,Wesrand Businesses and NBC members.