Notice Period South Africa: How Much Notice Must You Give?

Notice period meaning: a notice period is the time between one side telling the other that the job will end and the last day of employment, during which the contract continues and the employee is paid. Section 37 of the BCEA sets the minimum: 1, 2 or 4 weeks, depending on how long you have worked for the employer.

Handing in your resignation, or receiving a retrenchment notice, triggers one of the most misunderstood provisions of South African employment law. How long must the notice be? Can your employer send you home immediately and pay you out? Can you leave early? What if your contract says three months but the BCEA only requires four weeks? This guide answers all of it, using the exact text of Section 37 of the Basic Conditions of Employment Act (BCEA), Act 75 of 1997.

The BCEA Notice Period Table: Section 37

Section 37 sets minimum notice periods tied directly to your length of service. The longer you have been employed, the more notice both you and your employer must give:

These minimums apply symmetrically. They are the minimum notice you must give when resigning and also the minimum notice your employer must give you when retrenching or dismissing you (except for summary dismissal for serious misconduct, discussed below).

The Act's own wording technically overlaps at exactly one year of service: Section 37(1)(b) covers "more than six months but not more than one year" (2 weeks) and Section 37(1)(c) covers "one year or more" (4 weeks), so an employee at exactly the one-year mark literally falls into both brackets. This guide treats exactly one year as the full 4-week minimum, the safer reading for the employee.

Contract Notice Periods: When Your Contract Says More

The BCEA minimums are a floor, not a ceiling. Your employment contract may require a longer notice period (one month, three months or even six months for senior roles) and that longer period is perfectly lawful. The rule is simple:

• If your contract specifies a longer notice period than the BCEA minimum → the contract period applies
• If your contract specifies a shorter period than the BCEA minimum → the BCEA minimum applies regardless
• If your contract is silent on notice → the BCEA minimum applies

A clause in an employment contract that purports to require less notice than the BCEA minimum is void to that extent, because you cannot contract out of statutory minimums. Only a collective agreement can reduce notice, and only by cutting the 4-week period for employees with a year or more of service to no less than 2 weeks (Section 37(2)).

If your contract specifies notice in "calendar months" rather than weeks, be aware the term is ambiguous: it can mean a full calendar month (for example, 1 to 31 January), or a month running from the date notice was given (for example, 4 January to 4 February). Check whether your contract defines the term, and get your employer's confirmation in writing if it does not.

How Notice Pay Is Calculated

Whether you are working your notice or receiving payment in lieu, the rand value of a notice period is calculated the same way. Because the BCEA measures notice in weeks, you first need to convert your monthly salary into a weekly figure:

Worked example: R25,000/month, 4-week notice period

This R23,076.92 is either the wages you earn during your working notice period, or the lump sum your employer pays if they elect payment in lieu. Either way it is taxed as normal remuneration under your marginal PAYE rate, not under the retirement or severance lump sum tax table.

Payment in Lieu of Notice (PILON)

An employer is not obliged to require you to physically work out your notice period. Under Section 38, they may pay you the remuneration you would have received had you worked the notice period (calculated as in Section 35) instead of requiring attendance. This is called payment in lieu of notice (PILON).

PILON is common in several scenarios:

• During retrenchments: the employer wants the employment to end immediately, without a working notice period
• When an employee in a sensitive role (access to clients, trade secrets or systems) needs to be off the premises immediately
• When the employee and employer have an acrimonious parting and continuing to work together is impractical

Section 38 gives the employer the option to pay instead of requiring notice. It does not give you a right to demand it, so you cannot insist on being paid out instead of working your notice unless your employer agrees. If you leave early without agreement, you are in breach of the notice obligation.

Garden Leave

Garden leave (sometimes called "gardening leave") is a situation where your employer requires you to serve your notice period away from the office while you remain on the payroll on full pay but perform no duties. You are technically still employed, still bound by confidentiality obligations and restraint of trade clauses, but simply not working.

Garden leave is used most often with employees who have access to sensitive information, client relationships or competitive intelligence that the employer does not want them sharing with a new employer immediately. Unlike PILON, garden leave keeps the employment relationship technically alive for the duration.

Garden leave is not expressly provided for in the BCEA: it is a contractual arrangement. It is only binding if your employment contract contains a garden leave clause. Without such a clause, you could argue you have the right to attend work and perform your duties during the notice period.

What Your Employer Cannot Do During Your Notice Period

The BCEA places specific restrictions on what an employer may do once a notice period has begun:

Cannot force you to take annual leave

Section 20(5)(b) of the BCEA prohibits an employer from requiring, or even permitting, an employee to take annual leave during a notice period, and the Act states no exception. In practice some employers agree to it when the employee asks in writing, for a handover, but that is not something the Act allows, and it is not a right on either side. Any outstanding leave must be taken before the notice period starts or paid out at termination. The employer cannot simply offset it against the notice time.

Cannot serve notice during statutory leave

Section 37(5) applies to notice of termination given by an employer under Section 37, and has two limbs. An employer may not (a) give notice of termination during any period of leave you are entitled to under Chapter 3 of the BCEA, such as annual, sick, maternity or family responsibility leave, and (b) allow notice to run concurrently with any Chapter 3 leave, except sick leave. The Act prohibits this but does not say what happens to a notice given in breach of it, so if it happens to you, object to your employer in writing straight away.

Section 37(5) only governs notice given under Section 37. The Labour Court has held it does not stop a dismissal that follows a disciplinary hearing held while the employee is on leave, because that dismissal is "for a cause recognised by law" under Section 37(6)(b) (Raleie v CCMA [2021] ZALCJHB 409), though holding the hearing while the employee is on medical leave can still make the dismissal procedurally unfair under the Labour Relations Act.

Cannot reduce pay during the notice period

Your normal remuneration continues in full during the notice period. An employer who withholds pay, reduces your hours without agreement, or removes benefits during the notice period is in breach of contract and the BCEA.

Summary Dismissal: When No Notice Is Required

The notice obligation disappears in one specific circumstance: summary dismissal for serious misconduct. If an employee commits an act that makes continued employment intolerable (theft, assault, gross dishonesty, wilful damage to property), the employer may dismiss without any notice period after following a fair disciplinary process.

Summary dismissal is not a shortcut to avoid notice. The misconduct must be serious, and a fair hearing must take place first. An employer who dismisses without notice for a minor offence risks an unfair dismissal claim at the CCMA.

Notice Period Quick Reference: BCEA Section 37

Frequently Asked Questions