How much notice do you have to give in South Africa?

One week, two weeks or four weeks. Those are the minimums the Basic Conditions of Employment Act sets, and how long you have worked for your employer decides which one applies.

Many South African contracts ask for a calendar month instead. That is lawful too. But a calendar month and four weeks are not the same thing, and the difference between them can start an argument about your last day.

What the Act says

Section 37(1) of the Basic Conditions of Employment Act 75 of 1997 sets the minimum, and it binds both sides. Your contract may oblige your employer to give you more notice than you give it. It may not require you to give longer notice than your employer has to give (s37(3), quoted below).

Four weeks is the longest minimum in section 37. That is not necessarily the most a contract can ask for: a contract can ask for more, as long as it respects section 37(3). Nothing in section 37 says "a month", and nothing in it says notice runs to the end of a calendar month.

Why you may still see a four-week trigger

Some pages are still reading the 1997 text, which is on gov.za and says something different.

The original section 37(1) used four weeks of service as its trigger: one week's notice if you had been employed four weeks or less, two weeks if longer, and four weeks' notice for a domestic or farm worker employed more than four weeks. The 2002 amendment replaced that trigger with six months. The gazette prints the change in the old markup, square brackets for what came out and underlining for what went in, so section 8 of Act 11 of 2002 literally reads "[four weeks] six months" three times over.

If a page tells you a domestic worker is on four weeks' notice after a month of work, it is quoting a version of the law that was replaced during Thabo Mbeki's first term. When two pages disagree on this, check which version each one quotes.

What your contract can and cannot do

Where your contract gives you less than the Act, the Act wins. A basic condition of employment is automatically a term of your contract: section 4 puts it there unless the contract is more favourable to you, and section 5 says the Act "takes precedence over any agreement".

So a contract may give you longer notice, and many do. It may not give you less. The narrow exception is a collective agreement. Since 2002, section 37(2) says a collective agreement may not permit notice shorter than the Act's minimum, except that it may cut the four weeks in section 37(1)(c)(i) down to no less than two.

A calendar month, 30 days and four weeks are three different things

Four weeks is 28 days. Thirty days is 30. A calendar month is the one that causes arguments, because the Act does not define it for this purpose, and the courts have said the contract's wording and context decide what it means.

The case to know is South African Music Rights Organisation Ltd v Mphatsoe, decided by the Labour Court in March 2009. The employee's contract required one calendar month's notice. He resigned on 8 January 2008 and stopped work on 7 February, reasoning that a month had passed. The court held that "calendar month" in his termination clause meant a month running from the first day to the last. His notice only started on 1 February and ran to the end of that month, so he was in breach for leaving early. The same judgment, following earlier Labour Appeal Court authority, said a plain "month's notice" does not necessarily have to start on the first. What counts is what the parties intended, read from the contract as a whole.

In practice: resign mid-month on a calendar-month clause, and your employer may hold you to the end of the following month. Whatever your clause says, get your last working day confirmed in writing on the day you resign. Sometimes a candidate and an employer have different last Fridays in mind, with a handover week already booked against the wrong one.

Your contract cannot ask more of you than of your employer

This sentence is easy to miss, and it may be the most useful one in the chapter.

Read your contract for the two-way wording. A clause that holds you to three months while your employer can end the contract on one month's notice asks more of you than section 37(3) allows. A clause that asks three months of both sides stands, and you will see those in some senior and specialist roles. So does a clause that asks less of you than of your employer.

Notice on probation

South African law has no separate notice period for probation. Section 37 does not use the word.

Your length of service decides it, so someone four months into probation is on one week. Probation changes what your employer must do before dismissing you, which is a Labour Relations Act question. It changes nothing in section 37.

Notice must be in writing, and it may not eat into your leave

Notice has to be in writing, unless it comes from an employee who cannot write. If the employee receiving it cannot understand it, it must be explained to them orally in an official language they reasonably understand (s37(4)).

An employer may not give notice during leave you are entitled to under Chapter Three of the Act, and the notice may not run at the same time as that leave, sick leave excepted (s37(5)). Putting someone on four weeks of accrued leave and calling it their notice month is not lawful when the employer is the one ending the employment.

Being paid instead of working your notice

Section 38(1) lets an employer pay you what you would have earned during the notice period instead of having you work it. If you resign and your employer waives part of your notice, section 38(2) says it must still pay you for that part, unless the two of you agree otherwise. Check your final payslip against that.

What the payment is calculated on matters more than people expect. The Minister's notice under section 35(5) says that pay in lieu of notice, annual leave pay and severance pay all include the employer's contributions to medical aid, pension, provident fund or similar schemes, and any housing or car benefit. They exclude anything paid so that you can do the job, such as a transport allowance to get to work.

Resigning with immediate effect, and what it costs

You can physically walk out on a Tuesday. The question is what follows, and the Labour Appeal Court has settled the main point.

In Standard Bank of South Africa Ltd v Chiloane, decided on 10 December 2020, the Labour Appeal Court dealt with an employee whose contract required notice. She resigned "with immediate effect" on the day she received notice of a disciplinary hearing. The court held that a resignation which does not comply with the contractual notice period does not, on its own, end the contract. The employer may accept the shorter notice, or it may hold the employee to the notice period, in which case the employment continues until that period runs out. The bank was entitled to go ahead with the hearing. As a Labour Appeal Court decision, it binds the Labour Court.

So "immediate effect" is a request unless your employer agrees to it. Leaving anyway is a breach of contract, and your employer may claim the loss it can actually prove.

What your employer may not do is help itself. It may not deduct a "notice penalty" from your final pay unless a law, a collective agreement, a court order, an arbitration award or your own written agreement to that specific debt allows it (s34(1)). It must still pay you for the days you worked and pay out the leave you are owed under section 40. And you are still entitled to a certificate of service.

Handling your notice badly can also lead to a dispute, show up in a reference, or get in the way of a start date you have agreed. If you tell a new employer the exit was amicable and a reference says otherwise, that can count against you.

If you are thinking of resigning to avoid a disciplinary process, Chiloane means that does not work where the employer holds you to your notice. If that is your situation, phone the CCMA or get advice before you send the email.

The certificate of service

Section 42 says that when your employment ends you are entitled to a certificate of service, and it lists what goes in it: your full name, your employer's name and address, any council or sectoral standard covering the business, your start and end dates, your job title or a description of the work, your pay at the end, and the reason for termination if you ask for it.

That last item is the useful one. The reason goes in only if you ask, so by default the document is neutral. Ask for the certificate on your last day, while someone in HR still has your file open.

Why a recruiter asks about your notice period

Clients have start dates they are aiming for, so a recruiter often needs to know your notice period. A three-month notice period can fall outside the window a client is working to. Expect a consultant to ask early whether you could be released sooner, and to ask again once an offer is on the table.

The useful response is to ask your current employer, in writing, whether it will release you early. Some employers will agree, especially with a handover plan on the table, and some will not. Do not promise an earlier start until your current employer has agreed to release you, in writing. Until then, the notice period in your contract is the one that applies.

If you are working out a long notice, use the time. Set up job alerts now.

See manager roles advertised while you work your notice→

Where this does not apply to you

The BCEA covers almost all employees and employers. The exceptions in section 3(1) are members of the National Defence Force and the intelligence services, and unpaid volunteers working for a charity. The chapter on termination, including section 37, does not apply to anyone working less than 24 hours a month for that employer (s36).

On top of that, a bargaining council agreement or a sectoral determination in your industry can set different terms. If you work in one of those sectors, read the council's agreement before you read this page.

Your profile has a notice period on it because consultants often check it against a client's start date. You can change it whenever you like, or switch off "Let agencies find me" to take yourself out of agency search. What we hold and what you can switch off is set out in our privacy notice.

Worth reading next: if you are leaving without another job lined up, what you can and cannot claim from the UIF turns on a single subsection of the Act. If you are leaving for money, what CTC actually means on an advert is worth ten minutes before you compare two offers.