The Act stipulates that the notice of termination of a contract of employment must be given in writing. Therefore, when an employee resigns, he must tender his resignation in writing to the employer. The Act further stipulates that notice of termination of a contract of employment given by an employer may not be given during any period of leave to which the employee is entitled – meaning that the employer may not give an employee notice of dismissal or termination of contract while the employee is on annual leave, maternity leave, or family responsibility leave.
There is no provision in the Act which prohibits the employee from giving the employer notice of termination whilst the employee is on any period of leave to which he is entitled. The employer is permitted to give the employee notice of termination or dismissal whilst the employee is on sick leave. The employer may not insist that an employee must proceed on annual leave during any period of notice, and the employee is prohibited from taking annual leave during a period of notice.
Under certain circumstances, the employer may terminate a contract of employment without notice. There is no provision in the BCEA which entitles an employee to terminate a contract of employment by resignation, without notice. The exception to this may be where the employer has created an intolerable working condition, and the employee has made a decision to resign and leave the premises immediately and register a dispute of constructive dismissal at the CCMA.
Generally, however, giving the employer 24 hours notice by an employee is unlawful, and should the employee act in that manner, the employer would be entitled to sue the employee for breach of contract.