The Star E-dition

Closures: The legal process

IN THESE trying times we see thousands of employees landing up in the unemployment queues.

Despite the closures of many businesses it is still imperative for employers to follow the proper procedures and structures of both the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA).

A contract of employment may be terminated only on notice of not less than one week if the employee has been employed for six months or less; two weeks if the employee has been employed for more than six months but not more than a year and four weeks if the employee has been employed for one year or more.

If the employee is a farm worker or domestic worker who has been employed for more than six months then at least one month’s notice must be given.

There might be different agreements in the letter of appointment or contract of employment or in a collective agreement by the parties subject to the collective agreement.

It is important to understand that the notice of termination of a contract of employment must be given in writing except where it is given by an illiterate employee.

If the employee is not able to understand the notice, this notice must be explained to him or her orally by the employer or on behalf of the employer. It must be given in the official language the employee reasonably understands.

If the employee is on leave then the notice can’t be given during the leave period and the notice cannot run concurrently with any period of leave to which the employee is entitled to in terms of the act. However, leave can run simultaneously with sick leave.

The dismissed employee can dispute the lawfulness or the fairness of the dismissal in terms of the LRA. Employers may pay the employee the salary which the employee would have received instead of asking the employee to work out the notice.

On the other hand, if the employee gives notice of termination of employment the employer may waive the notice period but still must pay the remuneration owing to the employee in terms of that notice.

When employees reside on the employer’s premises or in premises supplied by the employer, the employer is required to provide the employee with accommodation for a period of at least one month, or if it is a longer period, until the contract of employment could lawfully have been terminated.

The employer must pay the employee for any outstanding leave calculated in terms of the BCEA.

If the notice was given for operational requirements there is severance pay owing to the employee. Therefore, any employee who is dismissed for reasons based on the employer’s operational requirements or whose contract of employment terminates in terms of the Insolvency Act, severance pay equal to at least one week’s pay for each completed year of continuous service with that employer must be calculated in terms of the BCEA.

If however, the employee has unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, that employee would not be entitled to severance pay in terms of the legislation.

If there is any dispute about the entitlement to severance pay, that dispute would fall under the jurisdiction of either a Bargaining Council or the Commission for Conciliation, Mediation and Arbitration.

METRO

en-za

2021-07-29T07:00:00.0000000Z

2021-07-29T07:00:00.0000000Z

https://thestar.pressreader.com/article/281646783175089

African News Agency