| (1) |
An employer or his employee, other than a casual employee, a special function casual employee, who desires to terminate the contract of employment, shall give— |
| (a) |
during the first month of employment, not less than one working days notice; |
| (b) |
during the second,third and fourth months of employment, one week's notice and |
| (c) |
thereafter, two weeks notice, of termination of contract, or an employer or employee may terminate the contract without notice by paying the employee or the employer, as the case may be, in lieu of notice, in the case of— |
| (i) |
a working day's notice, the wage the employee is receiving at the time of such termination; |
| (ii) |
a week's notice,the weekly wage the employee is receiving at the time of such termination; |
| (iii) |
two week's notice, two weeks' wage the employee is receiving at the time of such termination; |
Provided that this shall not affect—
| (aa) |
the right of an employer or an employee to terminate the contract without notice for any cause recognised by law as sufficient; |
| (ab) |
any written agreement between an employer and his employee that provides for a period of notice of equal duration on both sides and for longer than that prescribed in this clause; |
| (ac) |
the operation of any forfeitures or penalties that by law may be applicable in respect of any employee who deserts or who is absent without permission from work for more than five consecutive working days or six working days during the preceding six months (such an employee shall be deemed to have terminated his contract of service: Provided that this shall not apply when absence Is due to incapacity as defined in clause 14(3)(b); |
| (ad) |
an employee's failure or refusal to complete an attendance register provided to him in accordance with clause 18(4). |
| (2) |
Where there is an agreement in terms of the second proviso to subclause (1), the payment in lieu of notice shall be commensurate with the period of notice agreed upon. |
| (3) |
The notice prescribed in subclause (1) may be given on any working day: Provided that |
| (i) |
the period of notice shall not run concurrently with any notice and shall not be given during an employee's absence on leave granted in terms of clause 16: |
| (ii) |
notice shall not be given during an employee's absence on sick leave granted in terms of clause 14 or owing to incapacity in the circumstances set out in clause 14, amounting in the aggregate, in respect of absences or leave granted to not more than 10 weeks in any period of 12 months. |
| (4) |
Notwithstanding anything to the contrary in their agreement, where an employee terminates his contract of employment by leaving his employment without having given and served the required period of notice or without paying his employer in lieu of notice, his employer may, from any moneys he owes such employee by virtue of any provision of this Agreement, appropriate to himself an amount of not more than that which such employee would have had to pay him in lieu of notice: Provided that where an employer has so appropriated an amount in lieu of notice, it shall be deemed for the purpose of this clause that the employee paid the employer In lieu of notice. |
| (5) |
Guidelines for dismissal procedure: An employee shall have the following rights in respect of an enquiry: |
| (a) |
to be informed of the nature of the offence or misconduct, PLUS particulars of the charge; |
| (b) |
to a hearing to take place timeously; |
| (c) |
to be given adequate prior notice of the inquiry; |
| (d) |
to representation to be allowed to assist him; |
| (f) |
to challenge accusations,I.e.cross-examination; |
| (g) |
to have an interpreter; |
| (h) |
to a finding, i.e. found guilty, to be given reasons why and the penalty; |
| (i) |
to have his period of service and record to be taken into consideration; |
| (j) |
to appeal to "higher authority" when available. |
| (6) |
Guidelines for dismissal procedure for operational requirements (retrenchment procedure): |
| (a) |
Notification of intention to retrench— |
| (i) |
should it become necessary and an employer contemplates retrenchment, he shall, in respect of unionised employees inform the relevant trade union(s) or, in the case of non-unionised employees, of this fact; |
| (ii) |
a meeting shall be convened between the relevant parties by mutual agreement, following the trade union(s) or employees having received the notification of the necessity and intention to retrench; |
| (iii) |
the notification of the envisaged retrenchment must be accompanied by at least but not limited to the following information: |
| (aa) |
the reason(s) for retrenchment; |
| (ab) |
the number of employees involved in the proposed retrenchment; |
| (ac) |
the proposed date of implementation of retrenchment which date shall not be sooner than four weeks after the date of notification of the envisaged retrenchment. |
| (i) |
The employer and trade union(s) or non-unionised employees shall meet as contemplated in subclause |
| (a) |
above to considerthe following alternatives; |
| (aa) |
Reduction of overtime; |
| (ab) |
transfers to other department or operations (if possible); |
| (ac) |
working on a short time basis and/or work sharing; |
| (ad) |
reduction of employment of casual workers; |
| (ae) |
the granting of unpaid leave beyond normal annual leave provisions; |
| (ag) |
any other appropriate alternative. |
| (ii) |
If retrenchment is unavoidable, the parties should apply the following guidelines in selecting employees for retrenchment. |
| (aa) |
Employees who have reached or exceeded the normal retirement age according to the terms and conditions of employment of the employer; |
| (ab) |
early retirement at the request of the employee or employer; |
| (ac) |
"Lifo" - last in, first out subject to skills and organisational criteria. |
| (c) |
Notification to individual employees: After consultation as contemplated in subclause 6(b) above, individual employees selected for retrenchment shall be informed of this fact in writing by the employer. Employers shall where possible, in order to alleviate hardship, consider the possibility of granting additional notice of termination of service due to operational requirements. |
| (d) |
Severance pay: The employee shall be entitled to one week's severance pay for each completed year of continuous service with that employer subject to section 41(2) of the Basic Conditions of Employment Act, 1997. |
South African Council for Educators Act, 2000
