Judging by e-mails that I receive, there seems to be a new practice creeping in among employees who wish to terminate their employment contract.

In most cases employees are bound to provide the employer with 1 month written notice. Sometimes it is stipulated in the employment contract merely as 1 month or 4 weeks, and in other cases it is stipulated as 1 calendar month.

Whatever the case, the undesirable practice that is creeping in, is that employees are ignoring this contractual requirement, and are either tendering 24 hours of notice, or in some cases are tendering the contractual notice period in writing and but then walk out and simply do not return to work.

The employer is then left stranded without an employee to do the work in the vacated post, and the employee in fact is now in breach of contract.

It has always in the past been the practice for the employer to deduct one month salary from the final payout due to the employee, but in many cases the employee tenders 24 hours notice the day after payday, and in many cases there is no leave pay due and thus the employer is left high and dry with no means of recovering his losses, if any.

The question is, how illegal is this practice of the employee walking out on 24 hours notice?

The answer is that it is totally illegal - nowhere in the BCEA is their any provision allowing an employee to terminate his employment contract on 24 hours notice.

The employer must handle this in terms of breach of contract.

In order to protect themselves, employers must stipulated 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.

By including this as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment which the employee is then legally bound to follow and should he/she not do so, then the employer can make the deduction accordingly.

If this condition is not stipulated in the employment contract, the employer may not deduct any monies from the final payment due to the employee but must pay the employee in full and then sue the employee civilly (in terms of breach of contract) for any damages the employer may wish to recover.

The problem is, and especially with lower paid employees, the amount to be claimed will in many cases be far less than the amount of the legal costs incurred in the recovery, and in these cases the employer will end up by simply ignoring the matter and are losing out.

It is far wiser for the employer to protect himself in a written contract. There are those employers who never provide their employees with any form of written contract, and these employers will have a problem should the above occasion arise.