Please note that this pertains to South African Labour Relations and Best Practice requirements.
Let’s go back to my favourite protagonists – I haven’t used them for quite a while.
Mike is our SMME who owns a small store in a busy mall. George is his right hand man, who is basically the shop assistant and who is employed full time. George has worked for Mike for more than eight years.
George started working for Mike just after he left school and he had a basic standard 8 education and no work experience at all. George now is computer literate and is proficient at selling and he looks after the shop with the help of a casual, when Mike takes the occasional day off.
George now also has a full matric that he earned by correspondence and that Mike ultimately paid for.
George has a proper Letter of Appointment that he has signed and that states that a month’s notice should be given at termination by either party.
Over the past few months the relationship between Mike and George has been different. Not bad – just different you understand – but certainly different.
It all started when Mike did the annual increase and he gave George a 10% increase. George did not appear to feel that the increase was sufficiently big enough. Mike showed George all the increases that the business had to contend with, such as rent, utilities and so on and explained that due to the fact that sales were down and expenses were up, the store could not afford a bigger increase at that time.
Whilst George appeared to understand the predicament that Mike was in, he was not his usual self. Mike tried to find out what the problem was, but could not get any feedback from George – Mike hoped that ‘time’ would sort the problem out.
Well time certainly did sort the problem out, but not in the way that Mike would have liked. You see George came to work one day and stated that he was resigning with immediate effect and that this would be his last day and that he expected to be paid in full, including his leave pay etc., by the time he left that afternoon.
As I am sure you can understand, Mike was more than a little shocked! What now? Apart from anything else, it was coming up for Christmas – easily the busiest time for the retail sector and apart from him having to find another person to replace George, there certainly wasn’t enough time to find someone and train them. Mike was in for a very heavy two months.
Frustrated Mike stated that George had signed a contract stating that he would give a month’s notice. George shrugged his shoulders and stated “I am not coming to work here tomorrow and if you have not paid me and my money is not in my account tomorrow morning, I will go to the Department of Labour.”
Well so much for gratitude! So much for treating your staff well and fairly and for paying for their education . . . . Well, no use crying over spilt milk.
Understandably, Mike was furious, but what sort of recourse did he have?
In a similar case “National Entitled Workers Union v Commission for Conciliation, Mediation & Arbitration & others (2007) 28 ILJ 1223 (LAC), the union employed a person who left them without giving notice and the labour court disagreed that this was unfair labour practice perpetrated against them.”
According to Advocate Estelle Botha, “the court confirmed that the one recourse for employers is to sue the employee under common law, for breach of contract”. Yeah right! Exactly what purpose would that serve, other than to incur more costs and waste more of the employers valuable time?
Advocate Botha agrees that employees who give 24 hours notice or who just walk out are most definitely in breach of contract and that what they are doing is totally illegal – but how does that help the average entrepreneur or employer?
Wait – help is here! Advocate Botha has a solution for us and it goes like this.
Advocate Botha says “In order to protect themselves, employers must stipulate in the employment contract that should the employee terminate the employment contract without tendering the written contractual notice period, then the employer will deduct from the final payment to the employee, an amount equal to the period of notice not given.”
You see, if you include this clause in your Letter of Appointment or contract of employment, it becomes part of the agreement between the employer and the employee and when the employee signs the letter or contract of employment, it becomes a condition of their employment.
Then if the employee does ‘gap it’ or does only give 24 hours notice, you as the employer can deduct notice pay from whatever it is that you owe them.
How cool is that !
Remember though, unless you have that clause in place you cannot deduct the money. So for those who have letters and contracts of employment in place – don’t forget to ‘re-negotiate’ – whatever you do, don’t just change it.
I am off to include the clause in my contracts . . .