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What are the employee's obligations when giving notice in terms of his contract? And what can the employer do if they breach those obligations?
The Basic Conditions of Employment Act provides that an employee's employment may terminate only on notice of not less than four weeks where the employee has been employed for one year or more.
The employer and the employee may also agree to a longer notice period. This is often the case with senior employees, where notice periods of longer than one month are common.
In the Labour Court case of South Africa Music Right Organisation Limited v Mphatsoe (the Samro case), Mphatsoe was employed on a contract that required him to give written notice of one calendar month to terminate his employment.
He gave notice on January 8, 2008 intending to leave at the end of January and later conceded that he could only leave on February 8.
Samro argued that his month's notice would only start running from February 1st, because he was required to give a calendar month's notice, and applied to the
- The notice given by Mphatsoe on January 8 was ineffective to terminate his employment;
- That the contract terminated on February 29; and
- That he was in breach of contract when he left on February 8 and, as a result, Samro was entitled to damages.
To decide the case, the court had to consider two issues.
Firstly, what does giving a "calendar" month's notice mean?
Having regard to the use of the words "month" and "calendar month" in the particular circumstances of this employment contract, by using the words "calendar month", the parties intended that notice should be given on the first day of the month to run until the last day of the month.
In light of this finding, the court held that the employee had breached his employment contract.
Secondly, what damages can an employee who doesn't give proper notice and fails to work out his notice period be liable for?
The second question the court had to consider was whether Samro was entitled to damages. Samro claimed damages equal to the value of the services that it alleged Mphatsoe would have provided over the period, which it equated to the remuneration he would have earned for the period that he was in breach.
The court held that Samro failed to prove any damages suffered as a result of Mphatsoe having ceased work prematurely. There was no logical reason simply to assume that damages equated to the remuneration he would earned over the notice period.
The employer could have suffered damages exceeding that amount or, depending on the facts, it could have suffered no loss at all. In some circumstances, it might even have been to the employer's benefit to be relieved of having to pay the employee's salary.
Because it had failed to establish any factual foundation on which a claim for damages could be based or any loss consequent on the employee's breach of contract, Samro's claim for damages was dismissed.
Employers should clearly stipulate what they mean by a "calendar" month's notice if that term is used when formulating employment contracts. In the event that an employee is required to give notice on the first day of the month to take effect on the last day of the month, it is advisable that this be stipulated in so many words in the employee's contract of employment.
Secondly, before considering going to court to claim breach of contract, employers should be sure they have in fact suffered a loss and that they can prove the extent of the loss. Otherwise, the case will be an expensive exercise without any tangible reward.
The content in this article was provided by Roy Bregman (BA LLB), co-Director of Bregman Moodley Attorneys – a Johannesburg-based law firm.
Note: The content of this article does not constitute legal advice, nor does it necessarily reflect the views of the directors of Bregman Moodley Attorneys or their associates, contributors, authors, or suppliers. Even though every endeavour has been made as to the accuracy of the information, we cannot be held responsible for any errors and/or omissions.
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