What are an employer’s legal obligations to an employee once the employment relationship ends?
The employment relationship ends when:
- The employee is dismissed;
- The employee resigns;
- The employee is retrenched;
- The employee retires;
- A fixed-term contract comes to an end;
- By mutual agreement; and
- The death of either party.
- A certificate of service must be given to an employee on termination of his/her services.
- A letter of termination that briefly sets out the reasons for termination of services must be given to the employee in a form and language that the employee can reasonably understand. If an employee is illiterate or does not understand the contents of the letter, it must be explained orally by the employer, or on behalf of the employer by someone in a language that the employee understands.
- Notice – In the case of dismissal, unless there are grounds, such as gross misconduct, for dismissing the employee without allowing him/her to work out his/her notice period (‘summary dismissal’), the dismissal must be with notice. The employer can decide whether to allow the employee to work out the notice period, or to pay out the notice period without the employee having to remain at work. Payment in lieu of notice is advised when an employee is dismissed.
NB – An employer may not give notice to an employee when they are on leave, be it annual, sick, or maternity leave. Leave may also not be taken during the notice period. Statutory notice periods are as follows:
- One week’s notice, if the employee has been employed for six months or less.
- Two weeks’ notice, if the employee has been employed for more than six months, but not more than one year.
- Four weeks’ notice, if an employee has been employed for one year or more or is a domestic worker or a farm worker who has been employed for more than six months.
- Pay outstanding leave – This is compulsory for all forms of termination of employment.For an employee that dies in service, outstanding leave should be paid in accordance with the Master’s letter appointing an executor.
- Deductions – An employer may not make any deductions from an employee’s remuneration unless the employee agreed to this in writing (including a contract) or the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.
- Unemployment insurance (ÚIF) – When an employee is dismissed, retires, is retrenched or passes away in service, or the contract comes to an end, the employee or the employee’s dependants, are entitled to claim benefits from the Unemployment Insurance Fund.
To enable them to do this, the employer must supply them with a properly completed UI19 form which can be downloaded from the Department of Labour website, see link below.
The ‘basic guide to claiming UIF unemployment benefits’ is also available on the department of labour website.
- Compensation for Occupational Injuries and Diseases Act (‘COIDA’) – Notice of employee leaving.
The employer must notify the compensation commissioner when an employee has left the employer’s services when completing the monthly COIDA return.
- Payroll – The employer should ensure that the employee’s details are removed from the payroll, and that access to the business premises is revoked or restricted – this applies when an employee leaves for any reason.