Section 37 of the Basic Conditions of Employment Act sets the minimum notice to end an employment contract: one, two or four weeks, depending on length of service. Here is the rule, the exceptions, and what else is payable when someone leaves.
Under BCEA s.37(1), a contract of employment that either party may end on notice can only be terminated on notice of not less than:
| Length of service | Minimum notice | Section |
|---|---|---|
| Six months or less | One week | s.37(1)(a) |
| More than six months but not more than one year | Two weeks | s.37(1)(b) |
| One year or more | Four weeks | s.37(1)(c)(i) |
| Farm worker or domestic worker employed for more than six months | Four weeks | s.37(1)(c)(ii) |
These are minimums. A contract can set a longer period but not a shorter one: s.37(1) sets the minimum and s.4 makes it a term of every contract. A collective agreement likewise may not permit shorter notice (s.37(2)(a)), except as allowed by s.37(2)(b). The same periods apply whether the employer or the employee gives notice, and s.37(3) stops any agreement from making the employee give more notice than the employer must.
The Act counts in weeks. A contract that says "one calendar month" is longer than four weeks, so it is allowed, and the contract term applies.
Chapter Five of the BCEA (s.36 to s.42) does not apply to an employee who works less than 24 hours a month for an employer (s.36). Everyone else is covered, including employees who earn above the BCEA earnings threshold (R261 748,45 a year from 1 April 2025 under GN R.5970; check the latest notice on labour.gov.za). The threshold switches off parts of Chapter Two on working time. It has no effect on notice.
Section 37 applies to a contract "terminable at the instance of a party". A fixed-term contract that runs to its end date is not terminated on notice, though any early-termination clause in it must respect s.37. Probation does not shorten notice: an employee dismissed on notice during probation is owed at least one week under s.37(1)(a).
Giving the right notice does not make a dismissal fair. Section 37(6)(a) preserves the employee's right to dispute the fairness of the dismissal under the Labour Relations Act; see our page on dismissal for theft and fair procedure. Section 37(6)(b) preserves either party's right to terminate without notice for a cause recognised by law, such as serious misconduct.
If your business falls under a bargaining council, read the main agreement first; it may carry its own termination clauses and binds every employer in the registered scope. See our bargaining council guide and the pages for MIBCO, MEIBC, NBCRFLI and NBCCI.
Notice of termination must be given in writing, except when it is given by an illiterate employee (s.37(4)(a)). The rule applies to both sides, so a resignation should be in writing too. If the employee who receives notice cannot understand it, the employer, or someone on its behalf, must explain it orally in an official language the employee reasonably understands (s.37(4)(b)). Record who explained it, when, and in which language.
Use a dated, signed letter with a copy signed as received, stating the last working day.
Two rules in s.37(5) apply to notice given by the employer:
So you cannot hand an employee notice while she is on maternity leave, and you cannot have an employee serve his notice as accrued annual leave. Leave owed on termination is paid out separately under s.40, and the employee is entitled to a certificate of service (s.42). See our page on annual leave accrual under BCEA s.20.
Instead of giving notice, an employer may pay the employee the remuneration they would have received had they worked the notice period, calculated in accordance with s.35 (s.38(1)). Because s.35 defines remuneration more widely than basic wage, pay in lieu usually includes regular allowances and benefits.
If the employee resigns on notice and the employer waives any part of it, for example by telling the employee to leave immediately, the employer must still pay for the waived part unless the parties agree otherwise (s.38(2)).
Notice and severance are separate. Notice, or pay in lieu, is owed on every termination on notice. Severance is owed only where the dismissal is for the employer's operational requirements, meaning economic, technological, structural or similar needs (s.41(1)), and it is paid on top of notice.
The retrenchment procedure is in LRA s.189, and s.189A for larger employers. Consultation must happen before notice is given.
A clerk has two years' service on a contract that says nothing about notice. The employer decides to end the contract.
Had the clerk resigned, the same four weeks would apply to her (s.37(3)), and if the employer sent her home at once it would owe the balance under s.38(2).
Four weeks. Section 37(1)(c)(i) requires at least four weeks' notice once an employee has been employed for one year or more. A contract can set a longer period but not a shorter one: s.37(1) sets the minimum and s.4 makes it a term of every contract, and a collective agreement likewise may not permit shorter notice (s.37(2)(a)), except as allowed by s.37(2)(b).
Yes. Under s.38(1) the employer may pay the remuneration the employee would have earned over the notice period, calculated under s.35, instead of giving notice. If a resigning employee's notice is waived by the employer, the waived part must still be paid unless they agree otherwise (s.38(2)).
Yes. Section 37(4)(a) requires notice of termination to be in writing, except when it is given by an illiterate employee. If the employee cannot understand the written notice, the employer must explain it orally in an official language the employee reasonably understands (s.37(4)(b)).
No. Notice given by the employer may not be given during any leave the employee is entitled to under Chapter Three of the BCEA, and may not run concurrently with such leave, except sick leave (s.37(5)). Accrued annual leave is paid out on termination under s.40.
No. Notice pay applies to every termination on notice. Severance pay under s.41(2) applies only to dismissals for operational requirements, and is at least one week's remuneration for each completed year of continuous service, paid in addition to notice.
Compliance Radar's labour law assistant answers questions like this one with the section cited, from the BCEA, LRA, sectoral determinations and your own contracts, and each employee record holds the start date so notice is worked out from actual service. See how it works on the home page or contact us.
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