How Much Notice Must I Give When Terminating an Employee in South Africa?

Terminating an employee is never easy, but it’s a reality of running a business. Whether you’re facing redundancies, performance or behavioural issues, or simply parting ways, one question always comes up: how much notice do I legally need to give?

Getting notice periods wrong can be costly. Too little notice, and you might face a CCMA claim for unfair dismissal. Too much notice without proper procedures, and you’re wasting money. Let’s break down exactly what South African labour law requires when it comes to notice periods.

The Statutory Minimum Notice Periods in South Africa

The Basic Conditions of Employment Act (BCEA) sets out clear minimum notice periods that apply to most employees. Here’s what you need to know:

Standard Notice Period Requirements

The minimum notice period for termination depends entirely on how long the employee has worked for you:

• 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 less than one year; or
• Four weeks’ notice if the employee has been employed for one year or more.

These are the legal minimums. You can agree to longer notice periods in the employment contract (and many companies do for senior positions), but you cannot decrease these statutory minimums, even by agreement.

When Does the Notice Period Start?

The notice period begins on the day after the notice is given, not on the day notice is given. So if you hand an employee a termination letter on a Monday, their notice period starts on Tuesday.

This might seem like a technicality, but it matters when calculating final working days and pay.

Does the Notice Have to Be in Writing?

Whilst oral notice is technically valid, written notice is always best practice. A written termination letter provides:

• Clear evidence of when notice was given;
• Documentation for CCMA proceedings if challenged;
• Certainty for both parties about the termination date; and
• A professional approach to a difficult situation.

Always give notice in writing and keep a copy for your records.

Different Types of Termination and Their Notice Requirements

Not all terminations are created equal. The notice period requirements can vary depending on why and how the employment relationship is ending.

Termination Due to Operational Requirements (Retrenchment)

When you’re retrenching employees due to economic reasons or restructuring, the notice period rules are slightly different. You must give those employees who are being retrenched:

• Written notice of termination at least four weeks before the termination date, OR
• Payment in lieu of notice if you need them to cease working for you sooner.

However, before you even get to the notice stage, you must follow a fair consultation process. This includes:

1. Issuing a Section 189 notice if retrenching more than a certain number of employees;
2. Consulting with affected employees (or their representatives);
3. Considering alternatives to retrenchment; and
4. Using fair selection criteria (amongst other factors for discussion).

The consultation process can take several weeks, so factor this in when planning retrenchments. Notice of termination only comes after the consultation process is complete.

Dismissal for Misconduct or Poor Performance

When dismissing an employee for misconduct or incapacity (poor performance or ill health), you still need to provide the statutory minimum notice period. However:

• Gross misconduct (theft, violence, fraud) may justify summary dismissal with no notice, though you still need to pay out notice pay.
• Performance-related dismissals must follow a fair performance management process before notice is given.
• The notice period only starts after the disciplinary process is complete and the decision to dismiss is final.

Remember that paying notice doesn’t excuse you from following fair procedures. You can’t just hand someone money and expect them to leave without proper disciplinary processes.

Dismissal During Probation

Employees on probation are entitled to shorter notice periods. Many employment contracts specify one week’s notice during probation, which is acceptable as long as:

• It’s clearly stated in the employment contract;
• It’s been signed by both parties before employment begins; and
• It’s reasonable and not used to avoid a fair process.

Even during probation, you must have a valid reason for termination and follow a fair procedure.

Termination by Mutual Agreement

If you and the employee agree to mutually end the employment relationship, you can agree on any notice period (or no notice at all). This should always be documented in a settlement agreement signed by both parties.

Mutual separations are often the smoothest way to part ways, especially when the relationship isn’t working out but doesn’t quite warrant dismissal.

Payment in Lieu of Notice: Can You Pay Them to Leave Immediately?

Sometimes you need an employee to leave right away. Perhaps they’ve resigned and are going to a competitor, or you’ve dismissed them and having them around creates tension or possible issues in the workplace. Can you just pay them out instead of working the notice period?

Your Rights to Pay in Lieu

As the employer, you generally have the right to pay an employee in lieu of working their notice period, unless the contract specifically prohibits this. This means:

• You give notice of termination;
• You tell the employee they don’t need to work the notice period;
• You pay them their full salary for the notice period; and
• They leave immediately (or after a handover period).

This is sometimes called “garden leave” because the employee is essentially being paid to stay home and garden whilst technically still employed.

When Payment in Lieu Makes Sense

Consider paying in lieu when:

• The employee has access to sensitive information or clients;
• There’s concern about sabotage or negative influence on other staff;
• The employee has resigned to join a competitor;
• The working relationship has broken down irreparably; or
• You need to restructure roles immediately.

Calculating Payment in Lieu

Payment in lieu must equal what the employee would have earned during the notice period, including:

• Basic salary;
• Guaranteed allowances (car, phone, housing if allowed for in the employment contract);
• Average commission or bonuses if contractually entitled; and
• accrued annual leave that the employee is entitled to.

It does NOT include:

• Discretionary bonuses;
• Overtime (unless the employee regularly worked overtime); and
• Benefits that end on termination (medical aid, etc.).

What If the Employee Refuses to Work the Notice Period?

Sometimes employees who’ve been dismissed simply don’t come back to work during the notice period. What are your options?

Deducting From Final Pay

If an employee fails to work their notice period after being dismissed, you can potentially:

• Deduct the equivalent of the unworked notice period from their final pay (with certain limitations); or
• Claim damages if their absence causes measurable loss to your business.

However, you must be careful. Deductions from final pay are tightly regulated, and you can’t deduct if it would take their pay below the minimum wage. If the employee has already been dismissed and refuses to work, you’re often better off just ending the relationship than fighting over a few weeks’ worth of deductions.

The Practical Reality

If a dismissed employee stops coming to work during notice:

1. Document their absence;
2. Send written communication requiring them to return or provide reasons for absence;
3. Follow your normal absence procedures;
4. Make a business decision about whether pursuing deductions is worth the hassle; and
5. Prepare their final pay excluding the unworked notice period (if legally permissible).

Many employers simply cut their losses and move on rather than prolonging a difficult situation.

Special Notice Considerations for Fixed-Term Contracts

Fixed-term contracts need careful handling when it comes to notice. Here’s the key principle: you don’t normally need to give notice when a fixed-term contract reaches its natural end date.

When Notice Isn’t Required

If an employee is hired on a genuine fixed-term contract with a specific end date, the contract simply ends on that date. No notice is required if:

• The contract clearly specified it was for a fixed term;
• The end date or triggering event was clearly stated; and
• The reason for the fixed term was legitimate (project-based, maternity cover, etc.).

When You Do Need to Give Notice

You must give notice for fixed-term contracts if you’re:

• Terminating early (before the end date) for reasons other than gross misconduct;
• Not renewing a contract that has created a legitimate expectation of renewal; and
• Dismissing for misconduct or poor performance during the fixed term.

The same statutory notice periods apply to fixed-term employees as to permanent employees.

The Three-Month Rule

Be aware that employees on successive fixed-term contracts exceeding three months in total start acquiring rights similar to permanent employees. After three months, they’re entitled to notice before non-renewal if they had a reasonable expectation of renewal.

Notice Requirements for Different Earning Levels

South African labour law makes distinctions based on earning thresholds. Currently, the earnings threshold is R261,748.45 per year (or R21,812.37 per month), as of March 2025.

Employees Below the Earnings Threshold

Employees earning less than the threshold are entitled to:

• All protections under the BCEA;
• The statutory minimum notice periods;
• Overtime pay (with limited exceptions); and
• All provisions of sectoral determinations, if applicable.

These are your standard employees, where all the normal rules apply strictly.

Employees Above the Earnings Threshold

Employees earning above the threshold are excluded from certain BCEA provisions, but notice period requirements still apply. However:

• You can negotiate longer notice periods more easily;
• two to three months’ notice is common for senior positions;
• Six months’ notice isn’t unusual for C-suite executives; and
• The bargaining power is more balanced.

Even high earners can’t be dismissed without notice or proper process, though the specific procedures may differ.

What About the Employee Giving Notice to You?

The shoe can be on the other foot – what if your employee resigns? The same statutory notice periods apply, but working in reverse:

When Employees Resign

Employees must give you:

• One week’s notice if employed for six months or less;
• Two weeks’ notice if employed between six months and one year; or
• Four weeks’ notice if employed for one year or more.

Or whatever longer notice period is specified in their employment contract (one or three months is common for professionals).

Can You Hold Them to Their Notice?

If an employee resigns and wants to leave immediately without working out their notice period, you have a few options:

1. Agree to waive the notice and let them go (most common);
2. Require them to work the notice (you can enforce this, but it’s not always practical);
3. Negotiate a shorter notice period as a compromise; and
4. Accept payment in lieu if they offer it (though most employees won’t).

The practical reality is that forcing someone who wants to leave to stay rarely ends well. Unless there’s a critical business reason, most employers either let them go or negotiate a reasonable handover period.

When Employees Don’t Work Their Notice

If a resigned employee simply stops showing up without working their notice:

• You can deduct the unworked notice period from their final pay;
• You may have a claim for damages if their absence caused measurable loss; and
• You should still follow absence procedures and document everything.

Best Practices for Giving Notice of Termination

Getting the notice period right is just one part of a fair termination process. Here’s how to handle it properly:

1. Plan the Conversation

Before giving notice:

• Ensure all disciplinary or consultation processes are complete
• Prepare a written termination letter
• Calculate the exact termination date and final pay
• Arrange a private meeting with the employee
• Have a witness present (HR or another manager)

2. Communicate Clearly

When delivering the news:

• Be direct but compassionate
• Explain the reason for termination clearly
• Hand over the written termination letter
• Explain the notice period and what’s expected
• Outline next steps (return of company property, final pay, etc.)

3. Document Everything

Ensure you have:

• A signed copy of the termination letter (or proof of delivery)
• Notes from the termination meeting
• Evidence of the disciplinary process (if applicable)
• Calculation of notice period and final payments
• Return documentation for company property

4. Handle the Notice Period Professionally

During the notice period:

• Clarify what’s expected (handover, training replacement, etc.)
• Arrange the return of company property
• Cancel access to systems on the final day
• Maintain professional relationships
• Process the final payment promptly

Common Mistakes Employers Make With Notice Periods

Miscalculating the Notice Period Length

Getting the start date wrong or miscounting the length is surprisingly common. Always double-check:

• The employee’s start date (to calculate length of service)
• The day notice was given (notice starts the next day)
• Whether there are public holidays or shutdowns during the notice period
• The exact final working day

Confusing Notice with Disciplinary Process

The notice period comes AFTER you’ve concluded a fair process. You can’t:

• Use the notice period as a substitute for proper procedures
• Fire someone and then investigate during notice
• Give notice and then hold a disciplinary hearing

Fair process first, notice second.

Assuming No Notice Is Needed for Gross Misconduct

Even with gross misconduct justifying summary dismissal, you typically still need to pay notice pay. Summary dismissal means the employee leaves immediately, but they’re still entitled to payment for the notice period in most cases.

Trying to Extend the Notice Period Mid-Notice

Once you’ve given notice, you generally can’t unilaterally extend it. If circumstances change and you need the employee to stay longer, you’ll need their consent and buy-in first.

Failing to Account for Leave During Notice

Annual leave accrued during the notice period must still be paid out. And employees can request to take annual leave during notice (though you can refuse if you need them for handover). You also cannot force an employee to take annual leave during the notice period.

What Happens If You Don’t Give Proper Notice?

Failing to provide adequate notice can have serious consequences:

CCMA or Labour Court Claims

The employee can refer an unfair dismissal claim to the CCMA. If you didn’t give proper notice (and didn’t have grounds for summary dismissal), you could face:

• An order to pay the notice period salary;
• Additional compensation for unfair dismissal (up to 12 months’ salary);
• Legal costs; and/or
• Damage to your business reputation.

Automatic Unfair Dismissal

Dismissing without notice (and without justification for summary dismissal) can render the dismissal automatically unfair, which carries even higher potential compensation.

Payment Obligations

At a minimum, you’ll need to pay the notice period even if you didn’t give notice. Courts and the CCMA will enforce statutory minimum notice periods strictly.

Final Thoughts on Employee Notice Periods

Notice periods exist to give both employers and employees time to prepare for the end of the employment relationship. For employers, it’s time to find a replacement or redistribute work. For employees, it’s time to find a new job.

The key takeaways for South African employers:

• Minimum notice periods are one, two, or four weeks, depending on the length of service
• You can pay in lieu of notice to have employees leave immediately
• Notice doesn’t replace fair procedures – you still need proper processes
• Written notice is essential for documentation and clarity
• When in doubt, be generous – an extra week or two of notice can prevent disputes

Terminating an employee is never pleasant, but handling notice periods correctly shows professionalism, protects your business legally, and makes a difficult situation as smooth as possible for everyone involved.

Remember: getting notice right is just one piece of the puzzle. You still need valid reasons for termination, fair procedures, and proper documentation to avoid unfair dismissal claims. When navigating terminations, especially complex ones, professional legal advice is money well spent.

Facing a termination situation and unsure about notice requirements? Consult with a labour law attorney to ensure full compliance with South African employment legislation.