Impact of resignation on bonus

SauRoNZA

Honorary Master
Joined
Jul 6, 2010
Messages
34,084
It's illegal to take leave during your notice period. Unless I'm grossly mistaken?
Read what I said again.

It’s illegal for a company to force you to take leave.

As such therefore many put into their contracts that you can’t take leave during your notice period.

But if it can be approved and agreed upon by both parties it’s no issue.
 

Toxxyc

Expert Member
Joined
Dec 12, 2012
Messages
2,617
Read what I said again.

It’s illegal for a company to force you to take leave.

As such therefore many put into their contracts that you can’t take leave during your notice period.

But if it can be approved and agreed upon by both parties it’s no issue.
OK reading what you said again - you say resign and stay at home. That automatically assumes leave, unless you're staying at home without leave and you are, in fact, AWOL.

If you were to take leave though, and this is just my thinking (I'm not fighting with you), my understanding is this:

1. A company cannot "bypass" the law with an agreement, unless the specific law in question allows for this. An example would be where lunch time is reduced to 30 minutes from 60 minutes by agreement in writing. That's allowed. Any other laws can't be changed or ignored - if an agreement attempts this, it is not valid.
2. The Basic Conditions of Employment Act, Article 20(5) actually says:
(5) An employer may not require or permit an employee to take annual leave during-
(a) any other period of leave to which the employee is entitled in terms of this Chapter; or
(b) any period of notice of termination of employment.
That means, unless I'm misunderstanding the law, that you are not allowed to take, nor is your employer allowed to force you to take normal, annual leave during your notice period.
 

SauRoNZA

Honorary Master
Joined
Jul 6, 2010
Messages
34,084
OK reading what you said again - you say resign and stay at home. That automatically assumes leave, unless you're staying at home without leave and you are, in fact, AWOL.

If you were to take leave though, and this is just my thinking (I'm not fighting with you), my understanding is this:

1. A company cannot "bypass" the law with an agreement, unless the specific law in question allows for this. An example would be where lunch time is reduced to 30 minutes from 60 minutes by agreement in writing. That's allowed. Any other laws can't be changed or ignored - if an agreement attempts this, it is not valid.
2. The Basic Conditions of Employment Act, Article 20(5) actually says:


That means, unless I'm misunderstanding the law, that you are not allowed to take, nor is your employer allowed to force you to take normal, annual leave during your notice period.
I didn't say anything about staying at home, not sure where that comes from.

I'm talking about leave as normal leave as it always is.

The laws are very tricky to read in regards to employee vs employer. Most things apply to the employer not being able to do them like an employer can give notice to an employee during their leave period.

An employer can also not force an employee to take leave when the employee has given notice, so as to avoid paying them out or for whatever reason.

An EMPLOYEE however can request leave and can take it, so long as the employer approves of it.
 

SauRoNZA

Honorary Master
Joined
Jul 6, 2010
Messages
34,084
No, goes against BCEA.
It's only against the BCEA if the EMPLOYER is giving the notice to the employee during their leave period, or orchestrating their notice period during a leave period (so as not to pay them out).

If it originates FROM the EMPLOYEE it can be happily approved by the employer.

Normally employers just have it written into their contracts that it's not allowed so that they have continuity of handover to a new replacement employee or rest of the team members.
 

SauRoNZA

Honorary Master
Joined
Jul 6, 2010
Messages
34,084
Here you go.

Read the employee and employer bits carefully it changes the entire meaning.

https://www.labourman.co.za/can-an-employee-take-leave-after-giving-notice/

Section 20 – Annual leave – (5)(b) of the BCEA says that an employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.

This is interpreted to mean that an employee cannot take leave when he has tendered his resignation and when working his notice period. The converse also applies in that if the employer terminates the employment with notice, the employee also cannot take leave during that notice period.

Section 37 – Notice of termination of employment – (5)(a) of the BCEA says that notice of termination of a contract of employment given by an employer must not be given during any period of leave to which the employee is entitled and (5)(b) not run concurrently with any period of leave to which the employee is entitled, except sick leave.

Section 37(5)(a) is interpreted to mean that the employer may not terminate employment of an employee while the employee is on annual leave, maternity leave and family responsibility leave. This is because by law the employer must follow a fair procedure and have substantive or good reason to terminate the employee’s employment. The employer cannot comply with the law in terms a procedural and substantive fair dismissal, when the employee is on leave.

Section 37 (5)(b) is interpreted to mean that an employer cannot give notice to an employee of termination of employment alongside (or parallel to) any period of leave, except sick leave. This therefore means that an employer can give notice to an employee of termination of contract of employment when the employee is on sick leave or, otherwise interpreted, that if the employer has given notice to the employee, and the employee becomes sick during the period of notice, then the notice of termination of employment is permissible.

However, employers usually do not allow employees to take annual leave during their notice period. This is often set out in an employee’s contract of employment or in the employer’s policies and procedures. This is to ensure continuity of business and a smooth hand-over. An employee can be allowed to take leave so he does not have to report to the workplace during his notice period, if the employer likes to. However, the employer must confirm that the employee has requested the leave and that the employer has granted it in writing.
 

Toxxyc

Expert Member
Joined
Dec 12, 2012
Messages
2,617
I'm not sure if I agree, though. The law isn't unclear in that part, and even the link you posted said: This is interpreted to mean that an employee cannot take leave when he has tendered his resignation and when working his notice period. He intends to resign, so he can't take leave. That's why I said the law makes it clear - the employer may not require it, but they also may not permit it. I have no idea why - but that's what it says. I'm actually pretty interested to see where this stems from.
 

Kosmik

Honorary Master
Joined
Sep 21, 2007
Messages
19,157
Here you go.

Read the employee and employer bits carefully it changes the entire meaning.

https://www.labourman.co.za/can-an-employee-take-leave-after-giving-notice/

Section 20 – Annual leave – (5)(b) of the BCEA says that an employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.

This is interpreted to mean that an employee cannot take leave when he has tendered his resignation and when working his notice period. The converse also applies in that if the employer terminates the employment with notice, the employee also cannot take leave during that notice period.

Section 37 – Notice of termination of employment – (5)(a) of the BCEA says that notice of termination of a contract of employment given by an employer must not be given during any period of leave to which the employee is entitled and (5)(b) not run concurrently with any period of leave to which the employee is entitled, except sick leave.

Section 37(5)(a) is interpreted to mean that the employer may not terminate employment of an employee while the employee is on annual leave, maternity leave and family responsibility leave. This is because by law the employer must follow a fair procedure and have substantive or good reason to terminate the employee’s employment. The employer cannot comply with the law in terms a procedural and substantive fair dismissal, when the employee is on leave.

Section 37 (5)(b) is interpreted to mean that an employer cannot give notice to an employee of termination of employment alongside (or parallel to) any period of leave, except sick leave. This therefore means that an employer can give notice to an employee of termination of contract of employment when the employee is on sick leave or, otherwise interpreted, that if the employer has given notice to the employee, and the employee becomes sick during the period of notice, then the notice of termination of employment is permissible.

However, employers usually do not allow employees to take annual leave during their notice period. This is often set out in an employee’s contract of employment or in the employer’s policies and procedures. This is to ensure continuity of business and a smooth hand-over. An employee can be allowed to take leave so he does not have to report to the workplace during his notice period, if the employer likes to. However, the employer must confirm that the employee has requested the leave and that the employer has granted it in writing.
No, I think you are not following what they are saying. Section 20 clearly states its not allowed. Section 37 is around the issuing of notice by either party or termination, which may not take place during leave. Sick leave is the only exception.
 

SauRoNZA

Honorary Master
Joined
Jul 6, 2010
Messages
34,084
No, I think you are not following what they are saying. Section 20 clearly states its not allowed. Section 37 is around the issuing of notice by either party or termination, which may not take place during leave. Sick leave is the only exception.
Having taken leave myself during notice period and seen many others do so I beg to differ.

The nicely highlighted in green part of the article covers it all, as long as it's by request of the employee it's no problem at all.

It's only ever an issue if the employer is the one to insist on it.
 

SauRoNZA

Honorary Master
Joined
Jul 6, 2010
Messages
34,084
I'm not sure if I agree, though. The law isn't unclear in that part, and even the link you posted said: This is interpreted to mean that an employee cannot take leave when he has tendered his resignation and when working his notice period. He intends to resign, so he can't take leave. That's why I said the law makes it clear - the employer may not require it, but they also may not permit it. I have no idea why - but that's what it says. I'm actually pretty interested to see where this stems from.
I agree that it isn't very clear at all and could have been worded a lot better.

However, I've never ever had a problem to get it done and have been witness to it happening at companies both large and small without an issue.
 

Voicy

Honorary Master
Joined
Sep 19, 2007
Messages
10,832
It's illegal to take leave during your notice period. Unless I'm grossly mistaken?
I took leave during my notice period.

I put in leave long before I knew I was going to give notice, it was signed off by my manager. Then when it came time for me to resign, my manager was on sick leave - so I had to go to his boss to get it done, but it became a nightmare for HR to try and get my approved leave cancelled and overdue leave paid out on their system with signatures missing and whatnot - so eventually they just told me to go on leave below the radar.

But yeah, applying for leave after you've resigned is not the way to do it. Kind of defeats the point of having a notice period to tie up all loose knots etc.
 

Toxxyc

Expert Member
Joined
Dec 12, 2012
Messages
2,617
I agree that it isn't very clear at all and could have been worded a lot better.

However, I've never ever had a problem to get it done and have been witness to it happening at companies both large and small without an issue.
Oh I'm sure it happens all the time, there's no doubt in my mind about it. But just because it happens doesn't mean it's legal :p
 

Kosmik

Honorary Master
Joined
Sep 21, 2007
Messages
19,157
Oh I'm sure it happens all the time, there's no doubt in my mind about it. But just because it happens doesn't mean it's legal :p
That, if noone complains about it, its not reported. Having said that, its never been the case in my experiences.
 

RandomGeek

Well-Known Member
Joined
May 14, 2015
Messages
495
Late to the discussion but my experience:
  • The moment the company hears you are about to leave the bonus discussion becomes a hot potato; if the scores haven't been finalised you may magically find your expected score has droppped (typically there is a bonus pool; the staying members of the team may end up with a bigger share.)
  • If the bonus score/evaluation has been finalised HR may try to find an obscure policy to avoid paying you out.
  • Just delay giving your notice until the moment the bonus hits your bank account.
 

Jehosefat

Expert Member
Joined
May 8, 2012
Messages
1,234
Our contracts pretty clearly state that your bonus (should you be in line to receive one) will only be paid if you are still employed by the company and are not serving your notice period after resigning.

Usually means that there are a lot of resignations just after the bonus is paid.
 

The_MAC

Executive Member
Joined
Oct 11, 2012
Messages
5,135
So any update on the situation?
Offer letter expected sometime next week - bonuses were paid on the 26th. Yay - talk about good timing

So apologies, for now I will not be able to advise on how it might have turned out..

Maybe someone goes through this in the future and can update
 
Top