TERMINATION OF SERVICES- RESIGNATION LABOUR LAW

LEARNING OUTCOME 1 Discuss the issue of termination (C4,A4, LL).

INTRODUCTION Once a job offer has been accepted and the employee starts work, certain situations may arise which can lead to the termination of the employee’s contract of employment. It means ‘ending’.

Three types Termination by the employer Termination by the employee Automatic termination

DIFFERENCE BETWEEN RESIGNATION AND DISMISSAL Resignation: The employee resigns in the usual manner by submitting a letter of resignation. Dismissal: The term used when an employee’s contract is brought to an end by his employer on the grounds that the employee has committed a serious misconduct or unable to perform his duty.

RESIGNATION Employees have the rights to terminate their contract of service any time , for any reason, or for no particular reason. An employer has no mechanism by which he can stop an employee from resigning. As long as a resignation is voluntary, the only legal issue which may arise is whether the employee has given proper notice.

Employers are free to decide how much notice should be given by the employees and different groups of employees may be required to give different periods of notice. It must apply to both employers and employees. When the contract of service does not specify a notice period, the Employment Act stipulates the notice period for employees.

NOTICE PERIOD Employees with less than 2 years’ service 4 weeks Employees with more than 2 years’ service but less than five years 6 weeks More than five years’ service 8 weeks

FAILURE TO GIVE NOTICE BY EMPLOYEES The Employment Act makes it clear that any employee who fails to give the notice must pay an indemnity to the employer equivalent to the amount of wages which he would have been paid during that period. If the employee fails to pay this indemnity, the employer may file a complaint at the Labour Department to recover the money owed.

However, there is no such statutory requirement for employees not covered by the Employment Act. Thus, the employer should include notice period and the right of indemnity. In this situation, the employer can file a claim in the civil courts to recover the money owing.

FAILURE TOGIVE NOTICE BY EMPLOYER The law does not give an employer the right to terminate an employee’s contract by giving the required notice. It merely means that, when the contract is to be terminated with valid reason such as retrenchment, the employer must give a notice within the stipulated period. Forced resignation is amounting to dismissal.

When an employee is ordered to resign, they may submit an ordinary resignation letter and then file a claim for reinstatement. The employer may be liable for wrongful dismissal. However, a negotiated settlement between an employer and employee does not amount to a forced resignation.

WAIVING NOTICE When an employee resigns and gives notice as required, the employer has the right to waive the notice, i.e. to allow the employee to leave immediately without working out the leave. Especially if the employee has the access to sensitive information. The employer will have to pay the employee the wages which would have been due during the notice period.

WITHDRAWAL OF A RESIGNATION LETTER If the employee has changed his mind after submitting a resignation letter, he can change his mind in a case if his employer hasn’t received and accepted his offer to resign. If the employer has already accepted it, the letter cannot be withdrawn by the employee unless the employer agrees.