Frequently asked labour questions by employers and employees

I have resigned and have 25 days leave due to me. Can I take this leave during my notice period? I have told my employer I want to take my leave in my period of notice but he refuses.

Section 20 (5) (b) of the BCEA states clearly that “the employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.”
This means that, in terms of the act, an employee is prohibited from taking leave during his period of notice on resignation, and the employer is prohibited from forcing the employee to take leave during any period of notice.

We have an employee who has been with us for 12 months. We sent him on a training course when he joined us. He has now resigned – can we make him pay us back for the cost of the training course?

If no (preferably written) agreement was entered into before the employee embarked on the training, to the effect that he would be liable to repay you for the cost of the training should he leave your employment, then there is nothing you can do.

You can’t force such a condition on him now because it is after the fact. The conditions attached to the training should have been made clear to the employee in an agreement, prior to the training. In that way, the employee would have been given a fair opportunity to refuse the offer of training should he have felt that any of the conditions attached to it were unacceptable to him for whatever reason.

Harassment, intimidation, victimisation

It often happens that when employers wish to ‘get rid of’ an employee, they adopt tactics that create extremely unpleasant or unacceptable working conditions, in hopes that the employee will resign. It also happens sometimes when an employee has already resigned, and the employer is extremely annoyed, the employer is determined to get revenge on the employee before they leave.

This may take many different forms – it could involve spreading malicious rumours about the employee or insulting them or degrading them, overloading them with work, continually picking on them, swearing at the employee, using foul and vulgar or abusive language towards the employee, and etc.

Whatever the case, it is unacceptable, and is a violation of the human rights of the employee and also a violation of the employee’s right to be treated with dignity and respect. In fact, employers have a duty to protect their employees from harassment as opposed to subjecting employees to harassment.

The employee should keep a note of all incidents, noting the date and time, what the nature of the incident was, and the names of any witnesses. The harasser should then be confronted and a formal demand written made to the harasser that they immediately cease the unacceptable behaviour. The employee can state that should the harasser not cease the harassment, the employee will refer the matter to the CCMA for conciliation, and if that fails, the matter will proceed to the Labour Court.

Such correspondence will usually resolve the issue, because the harasser knows that he is out of line, and that his actions are unacceptable.

We have an employee who has been with us for 12 months. We sent him on a training course when he joined us. He has now resigned – can we make him pay us back for the cost of the training course?
If no (preferably written) agreement was entered into before the employee embarked on the training, to the effect that he would be liable to repay you for the cost of the training should he leave your employment, then there is nothing you can do.

You can’t force such a condition on him now because it is after the fact. The conditions attached to the training should have been made clear to the employee in an agreement, prior to the training. In that way, the employee would have been given a fair opportunity to refuse the offer of training should he have felt that any of the conditions attached to it were unacceptable to him for whatever reason.

Overpayments of remuneration to employee
If an employer inadvertently or erroneously calculates the remuneration due to an employee, which results in an overpayment of remuneration to the employee, then the employer is entitled to recover such overpayment from the employee.

Payment instead of notice
Should an employee give notice of resignation, or should the employer give notice of termination of contract or dismissal, and the employer requires the employee to leave the premises immediately, the employer is still obliged to pay the employee for the full period of notice given by the employee.

Should an employee give notice of resignation, but the employee requests to leave the employment immediately, then the employer has the right to grant that request, but then the employer is not obliged to pay the employee for the period of notice given. The employer also has the right to refuse such a request from the employee.

What payments can I expect when I resign?
Generally, upon resignation or dismissal, an employee is entitled to be paid the notice pay where applicable, salary up to last day worked, plus any outstanding leave pay. Bonuses are normally payable pro rata, but this will depend on the employer’s bonus payment policy, and any other bonus payment agreements which may be contained in a contract of employment or collective agreement. Accrued retirement fund benefits will also become payable to the employee in terms of the rules of the fund.