Termination of Employment
Labour Attorney Cape Town
Information on Termination of Employment
Information extracted from the internet, not original of this website:
Section 37 of the Act provides that termination of employment at the instance of a party to the contract may be terminated only on a notice of not less than:
One week, if the employee has been employed for six months or less;
two weeks, if the employee has been employed for more than six months but not more than one year;
four weeks, if the employee has been employed for one year or more or, in the case of a farmworker or domestic worker , employed for more than six months.
That these notice periods are the minimum and may not be shortened by any agreement. However, section 37 (2) (b) does provides that a collective agreements May permit the notice period of four weeks to be reduced to not less than two weeks. The employer may not impose on the employee a notice period that does not also equally apply to the employer. In other words, if the employment contract stipulates that the employee must give 2 months notice for termination of the contract, then the employer must also give the employee 2 months notice if the employer wishes to terminate the contract or dismisses the employee.
The Act stipulates further that notice of termination of a contract of employment must be given in writing except when it is given to or by any illiterate employee. Notice of termination of employment, when given by the employer, must not be given during any period of leave to which the employee is entitled in terms of chapter 3 of the Act, and may not to run concurrently with any period of leave to which the employee is entitled, except sick leave.
Put differently, if an employer dismisses an employee, and the employee has annual leave due to him, the employer may not require that the dismissed employee take the outstanding annual leave during the period of notice. The employer is required to pay out the employee for this leave. However should the employee require sick leave during a period of notice, and he/she has sick leave days available, then the employee is entitled to take paid sick leave during a period of notice.
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Ensure you understand and apply the correct legal procedure for your situation. The process doesn't necessarily begin with the termination interview or letter, it can be deemed (by a subsequent tribunal, court, review body or process, for example assessing an unfair dismissal or discrimination claim) to have begun as early as when the employee was first recruited into the organization. If employment termination is due to redundancy check with the relevant government department for employment as to the proper procedures and statutory requirements relating to pay and notice periods, etc. Liaise as necessary with trades unions and other interested bodies to understand all of the facts, options and procedures. See more more detail on the employment disputes page).
UK and European laws have changed frequently in these areas, neverthless central principles provide a basis of best practice for other regions of the world in the absence of specific legislation, for example:
Give reasons for the proposed dismissal to the employee in writing and give the employee a reasonable period during which to consider the facts and his/her response.
Hold a meeting with the employee to explain the reasons and give employee the opportunity to explain his/her position.
After the meeting give the employee the employer's decision in writing (whether to proceed with the dismissal or other action), and invite employee to make an appeal and attend an appeal meeting.
After the appeal meeting the employer must confirm the appeal decision in writing.
A manager of proper authority must attend meetings, and meetings must be at reasonable times and venues, also the employer must not delay unreasonably any of the stages in this process.
Concentrate on the facts of the situation, and the clear quantifiable measurements to support these facts. Ensure there is clear indisputable evidence for the facts and figures. This requires good record-keeping to be an essential part of the process, and therefore to also be a part of the management practice of the organization.
Be fair and compassionate. Even in situations involving gross misconduct - remember you are dealing with another human-being who has their own problems, probably now made all the worse because their employment is being terminated. They don't need you to start being vindictive, vengeful or spiteful and nor will any subsequent review process look kindly on any aspects of personally directed behaviour in the employer's handing of the situation.
These principles are also a good guide for terminating other forms of supply contracts. Suppliers come in all shapes and sizes and the separation between the rights of full employee and those of certain other contracted workers, agents, distributors, etc., is not as distinct as many people think. Sales agents, for example in Europe especially, have extremely strong rights when it comes to termination of contracts and agreements. Franchisees of all sorts, agency staff, and tenants with tied retail agreements with breweries, are among other worker-supplier groups whose rights have significant implications for 'employers' when terminating contracts and agreements. Always check the law and follow proper process. The consequences for employers and organizations for failing apply correct process when terminating employment or similar contracts are increasingly serious.
As a matter of philosophy - always try to part as friends, not enemies. Nothing is gained by alienating people who already see themselves as victims; negative treatment can prompt them to be vengeful, which does nobody any good at all. Also by keeping employment termination and dismissal letters positive you avoid risk of libel or defamation, which carry potential legal liabilities for the employer, irrespective of the circumstances and process of the dismissal itself.