Question: Good day Alan. I would like to know: I’ve resigned and had to give one calendar month’s notice, but I would like to leave sooner. What are my rights, and is it possible to leave sooner? Regards.
(City Not Listed) South Africa
Answer: Dear Lojan:
Of course, I am not licensed to practice labour law in South Africa, but I have briefly reviewed South African law on this subject, and this is what I found:
1. The South African “Basic Conditions of Employment Act” applies to resignations. This law provides – in general – that both employees and employers must give each other at least four weeks notice of the intention to end the employment relation. However, if the employer and employee agree to a longer period, such as in your case “one calendar month,” that is a legally enforceable agreement. By the way, “one calendar month” has been interpreted by the South African Labour Courts to mean that, for example, if you give notice on April 15, you cannot leave until May 30, that is, one full calendar month, not just four weeks, as the law requires. (Incidentally, this law applies only to employees who are employed for one year or more.)
2. That law permits employer and employee to agree on a longer – or shorter – notice period. Understand that the law permits both employer and employee the freedom to increase or decrease the required notice. As in your case, many employers ask for a longer notice period.
3. If you leave early, your employer can seek from you resulting “damages.” This is one of the more interesting parts of the law: it does not provide for any certain “penalty” or “fine” for leaving early. Instead, the Labour Courts have decided that, for an employer to be awarded “damages” from an employee who leaves early, that employer must prove that it suffered actual financial damages as a result of the early departure, something that is not easy to establish. Thus, in many cases the law may be a “tiger without teeth.”
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4. If you were “tricked” in to providing more notice, or coerced into doing so, that might be a defense. There are many “defenses” to agreements. Two of the more common defenses in this circumstance are that (a) you did not understand what you were agreeing to, or (b) you felt “coerced” into signing the agreement.
5. It always pays to try negotiation: consider offering your employer something else in exchange for shortening your agreed notice period. My clients in situations like yours have been successful in suggesting their employers permit them to leave earlier than agreed, in exchange for: (a) a promise to complete pending projects and tasks during nights and weekends, if necessary; (b) a promise to remain available by telephone for consultations and answering questions; and (c) a promise to work very hard to make sure the customers and clients continue to use the employer’s services or buy the employer’s goods. These, and other things you might think of, might be of sufficient perceived value to convince your employer to permit you to depart early.
I hope this helps. Thanks for writing in. Hope you’ll share the value of our blog with your friends.
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