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Judith Griessel answers:

This is more a contractual than a labour law issue.  If someone does not work their contractual notice, it means that they are in breach of their employment contract and the employer can then cancel the contract and sue them in civil court for damages or “specific performance”. The employer has to prove to the court what their actual losses / damages were due to the employee leaving without working their notice; or ask the court to compel the employee to work the notice in terms of the contract (this is not really workable in an employment set-up). 

The employer cannot short-circuit this process by simply deciding unilaterally that -

  1. the “damages” is necessarily equal to the salary that the employee would have earned for the notice period; and
  2. set this off against the leave etc. owed to the employee. (There is also an issue in terms of the Pension Fund Act that amounts owed to the employer cannot be ser off against pension, except in circumstances of dishonesty and only if very specific requirements have been met in terms of documentation etc.)  

 

The possible exception is

if, in terms of the contract itself, the parties had agreed upfront that in case of not giving proper notice, the employee would owe the employer exactly that amount equal to salary during the notice period. Then that would be a “liquid debt” in terms of the contract which could be enforced against the employee much more easily than actually having to prove the amount of damages. However – again, although this might give rise to a quick judgement against the employee in civil court, it does not necessarily mean that it can now be directly set-off or deducted from the employee’s  last payment / leave etc., without the express permission of the employee to do so (in the contract itself or at a later stage).

Judith Griessel
Employment Relations and Labour Law Consultant
B. Iuris. LL.B (UOFS)
Admitted High Court Advocate