Employers often grapple with resignations given with too little notice or, more dramatically, resignations effective immediately. Less commonly discussed, however, is the situation when an employee tenders a resignation with more notice than required by either the employment contract or the Basic Conditions of Employment Act (BCEA). How should an employer handle an “excessive” notice period?

Understanding Notice Requirements

Whether or not a written employment contract exists, the minimum notice requirements are set out in Section 37 of the BCEA. These minimum periods are as follows:

• One week for employees employed for six months or less;
• Two weeks for employees employed for more than six months but less than one year;
• Four weeks for employees employed for one year or more.

Importantly, these are only minimum notice periods. Employers and employees may mutually agree to longer periods, which would then be binding on both parties, even when the employer decides to terminate the contract.

Let’s take a look at two different scenarios:

1. Contractually Stipulated Notice Period

Consider a situation where a written contract specifies that an employee who has worked for over a year must give four weeks’ notice. If the employee submits a resignation in the middle of Month A, stating it will be effective at the end of Month B (thus providing six weeks’ notice), must the employer honour this longer notice period?

The case of Uthingo Management (Pty) Ltd v Shear NO and Others provides guidance. Two employees, employed for over one year and contractually bound to a four-week notice period, tendered resignations with more notice than required. The employer responded by setting the effective resignation date as four weeks from the resignation date rather than the later date proposed by the employees. Although the Commission for Conciliation, Mediation and Arbitration (CCMA) initially ruled that this amounted to an unfair dismissal, the Labour Court later confirmed that, since resignation is a unilateral act ending the employment relationship, the employer can enforce the agreed notice period.

2. Notice Without a Written Contract

In another scenario, an employee who has worked between six months and one year, without a written contract, tenders a resignation effective at the end of Month B by giving four weeks’ notice. Under the BCEA, only a minimum of two weeks’ notice is required. Is the employer obliged to accept the additional notice?

This situation is more ambiguous because Section 37 of the BCEA establishes a minimum requirement. A prudent approach for employers is to:

• Acknowledge the resignation immediately: Confirm acceptance but state that the effective resignation date will be based on the statutory minimum notice period.
• Consider any subsequent changes: If the employee later wishes to withdraw the resignation, review the circumstances and intentions behind providing extra notice.

Guidance comes from the RJ Maart v Premier Protection Services arbitration. In that case, an employee (without a written contract) tendered nearly seven weeks’ notice, while the BCEA required only one week. The employer accepted the resignation but set the notice period at three weeks, which was more favourable than the statutory minimum. When the employee challenged this decision with the CCMA, the Commissioner ruled that the employer had acted appropriately by offering a better-than-minimum notice period and clearly communicated the effective resignation date.

Best Practices for Employers

Based on the above, employers should consider the following:

• Ensure Written Contracts: Clearly outline notice requirements in employment contracts.
• Communicate Clearly: When an employee gives more notice than required, promptly confirm acceptance of the resignation while specifying that the effective date will adhere to the contractual or statutory minimum.
• Review Withdrawal Requests Carefully: If an employee wishes to withdraw their resignation, assess whether the extra notice was given in good faith and determine the appropriate next steps.

By establishing clear policies and maintaining transparent communication, employers can navigate these resignation scenarios effectively and avoid potential disputes.

Written by Daniel Van Der Merwe, National Collective Bargaining Co-Ordinator (CEO SA)