South African Labour Law: Resignation & Dismissal

1. Employee Resignation
When an employee resigns, they voluntarily terminate their employment contract. The following legal principles apply:
Notice Period Requirements (Basic Conditions of Employment Act – BCEA)
• Employees must provide written notice based on their contract or BCEA minimums:
o 1 week if employed for 6 months or less.
o 2 weeks if employed for 6 months to 1 year.
o 4 weeks (1 month) if employed for more than 1 year or in a professional role.
• If the contract specifies a longer notice period, that must be followed.
• The notice period must be worked unless both parties agree otherwise.
Resignation with Immediate Effect
• Employees can resign immediately, but the employer may withhold pay for the notice period unless a mutual agreement is reached.
• Employers must still pay outstanding salaries, leave pay, and other owed amounts.
Resignation During Disciplinary Action
• Employees can resign at any time, including during a disciplinary hearing.
• If an employee resigns “with immediate effect” during a hearing, they avoid dismissal but may still face legal consequences for misconduct.
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2. Employee Dismissal
Dismissal in South Africa is regulated under the Labour Relations Act (LRA). A dismissal is fair if it meets these criteria:
• Substantive fairness – There must be a valid reason.
• Procedural fairness – The employer must follow the correct legal process.
Valid Reasons for Dismissal
1. Misconduct Dismissal
Examples: Theft, fraud, insubordination, absenteeism, dishonesty. Procedure:
1. Investigation – Gather evidence.
2. Notice of Disciplinary Hearing – Provide written notice at least 48 hours before the hearing.
3. Disciplinary Hearing – Allow the employee to present their case.
4. Decision – If guilty, the employer may dismiss, warn, or take other action.
5. Appeal Process – The employee has the right to appeal.
2. Poor Performance or Incapacity Dismissal
• Employees must be given training, coaching, or assistance to improve.
• The employer must set clear performance goals.
• A performance review must be conducted before deciding to dismiss.
3. Retrenchment (Operational Dismissal)
• If job cuts are necessary, retrenchment laws under Section 189 of the LRA apply.
• Employers must:
o Consult with affected employees.
o Consider alternatives to dismissal.
o Offer severance pay (minimum of one week’s salary per completed year of service).
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3. Can an Employee Be Dismissed Without Notice?
• Yes, but only for serious misconduct (e.g., theft, violence, fraud, gross dishonesty).
• A disciplinary hearing is required before dismissal, except in extreme cases like criminal acts.
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4. What Happens if a Dismissal is Unfair?
If an employer unfairly dismisses an employee, the employee can:
• Lodge a case at the CCMA (Commission for Conciliation, Mediation, and Arbitration) within 30 days.
• If found unfair, the employer may have to:
o Reinstate the employee (give them their job back).
o Pay compensation (up to 12 months’ salary).
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Key Takeaways
✔ Employees must give proper notice before resigning unless an agreement is reached.
✔ Employers must follow due process before dismissing an employee.
✔ Unfair dismissals can be challenged at the CCMA.
✔ Retrenchments must follow legal consultation processes.
For more information, refer to the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA).